THE 

STRUGGLE  FOR  LAW 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


Professorof  Law  at  the  University  of  Göttinnen 


Translated  from  the  Fifth  German  Edition 


I 

J    Struggle  for  Hato 

D 

By  Dr.  Rudolph  von  Jhering 

I 

I 

I 
I 

By  JOHN  J.  LALOR 

t  of  the  Chicago  Bar 

8  m 

B  III 

Second  Edition 

I  Wz'/A  #«  Introduction  by 

I  Albert  Kocourek 

|  Professor  of  Jurisprudence  in  Northwestern  University 

S  to 

1  I 

1  to 


ü  chicago  id 

an: 

1915 
I  TO 


#  CHICAGO  W 

|  CALLAGHAN  AND  COMPANY  U 

W  1915  ID 


Copyright,  1879 

By 

Callaghan  &  Company 

Copyright,  1915 

By 
Callaghan  fcf  Company 


To 
<§totQ?  Wä.  g>mitf) 

of  the  Bar  of  Chicago 

this  volume  is 

respectfully  inscribed 


Contentö 


Page 

Introduction vii 

Translator's  Note xxxv 

Author's  Preface xliii 

Chapter 

I.    Origin  of  the  Law I 

II.    The  Life  of  the  Law  a  Struggle        .  21 

III.  The  Struggle  for  his  Rights  a  Duty  of 

the  Person  whose  Rights  have  been 
Violated,  to  Himself 31 

IV.  The  Assertion  of  One's  Rights  a  Duty 

to  Society 69 

V.    Importance  of  the  Struggle  for  Law  to 

National  Life 97 

VI.    The  Roman  Law  of  To-day,   and  the 

Struggle  for  Law 109 

v 


Jntrobuctton 

to  tfje  ©ranölateb  'Volumt 

By  Albert  Kocourek1 

|p]T  is  the  fortune  of  the  generality 
of  men  to  follow  the  beaten  path, 
to  use  tools  already  designed,  and 
to  think  in  terms  already  fash- 
ioned. In  such  lives  there  is  no  room  for 
cataclysms,  or  great  events;  there  is  no  place 
there,  either,  for  quarrel  with  the  existing 
order,  or  for  effort  to  alter  the  accepted 
course.  Such  lives  constitute  the  cell  mat- 
ter of  the  social  organism,  reacting  mechan- 
ically, or  at  least  without  fixed  resistance, 
to  the  influences  from  without  and  within. 
Rarely,  however,  in  the  complicated  web  of 
history,  a  labyrinth  of  lines  will  cross  each 
other  at  a  common  point  to  mark  out  persons 

1  Professor  of  Jurisprudence  in  Northwestern  University. 
vii 


Sutrotmctton 


of  great  fortune  or  misfortune.  Such  was 
the  imagery  adopted  by  an  accomplished 
novelist  to  explain  his  fatalistic  views;  and  if 
there  be  merit  in  this  sprightly  figure,  we  will 
have  no  difficulty  in  conceiving  an  interesting 
conjunction  of  favoring  lines  to  explain  the 
brilliant  career  of  Rudolph  von  Jhering. 

One  does  not  read  far  into  jurisprudence 
without  encountering  both  his  name  and 
his  influence.  He  was  a  builder  of  new 
roads,  a  maker  of  new  tools,  and  a  creator  of 
ideas.  He  came  upon  the  world's  stage  as 
the  last  great  influence  out  of  centuries  of 
struggle  beginning  with  the  revival  of  the 
study  of  Roman  law  at  Bologna,  and  the 
successive  stages  of  Glossators  and  Com- 
mentators, "Mos  Italicus"  and  "Mos  Gal- 
licus,"  the  Practical  School  and  Natural  Law, 
and  finally  the  Historical  School,  to  compose 
the  differences  between  Romanists  and  Ger- 
manists,  and  to  prepare  the  way  for  the 
Civil  Code.1 

1  For  a  full  account  of  the  development  of  German  law,  see  "A 
General  Survey  of  (etc.)  Continental  Legal  History"  ("Continental 
Legal  History  Series,"  Vol.  i),  Boston,  1912,  p.  311  seq. 

viii 


Sntrobuctton 


Jhering,  the  son  of  a  lawyer,  was  born  at 
Aurich  on  the  shores  of  the  North  Sea,  in 
East  Frisia,  August  22,  1818.  He  studied 
law  at  Heidelberg,  and  (after  the  established 
custom  of  German  students  who  wander 
from  one  university  to  another)  also  at 
Munich,  Göttingen,  and  Berlin.  He  became 
a  "Privat-Docent"  at  Berlin  in  1844  just 
as  Gustav  Hugo,  the  founder  of  the  His- 
torical School  which  Jhering  was  later  to 
overthrow,  laid  down  his  labors  in  death. 
He  became  ordinary  professor  at  Basel  1845, 
Rostock  1846,  Kiel  1849,  Giessen  1852, 
Vienna  1868,  and  at  Göttingen  1872,  where 
he  remained  until  his  death  on  September 
7,  1892.1 

If  Jhering  had  not  become  the  most  re- 
nowned jurist  of  the  second  half  of  the  last 

1  The  following  sketches  treat  the  life,  character,  and  works  of 
Jhering  more  completely  than  can  be  here  attempted:  M.  de  Jonge, 
"Rud.  von  Jhering"  (1888);  A.  Merkel,  "Rud.  von  Jhering"  (1893) 
(translated  as  an  appendix  to  Jhering,  "Law  as  a  Means  to  an  End") 
("Modern  Legal  Philosophy  Series,"  Vol.  v);  Eck,  "Zur  Feier  des 
gedächtnisses  von  B.  Windscheid  und  R.  v.  Jhering"  (1893);  Munroe 
Smith,  "Four  German  Jurists,"  Pol.  Sc.  Q.,  Vols,  x,  xi,  xii.  Refer- 
ence may  also  be  made  to  volume  ii,  in  the  "Continental  Legal  His- 
tory Series,"  under  the  title  "Great  Jurists  of  the  World  from 
Papinian  to  von  Jhering." 


IX 


Sntrobuctton 


century,  it  is  not  unlikely  that  he  would 
have  gained  fame  in  any  other  calling  where 
personality,  a  comprehensive  and  lively  dom- 
ination of  complex  realities,  or  the  literary 
quality  might  play  a  part  in  the  attainment 
of  success.  The  power  of  his  personality 
is  attested  by  the  fact  of  his  great  popularity; 
his  lectures  were  always  crowded  with  listen- 
ers; and  his  home  was  the  shrine  at  which 
the  devoted  from  all  quarters  of  the  world 
worshiped.  Ideas  were  obliterated  and  men 
effaced  before  him.  Merkel,  who  himself 
became  a  jurist  of  great  fame,  says  that 
after  hearing  Jhering  lecture  on  Roman  law, 
the  discourse  of  Vangerow  became  a  closed 
book.  He  was  able  to  arouse  great  enthusi- 
asm, to  attract  the  multitude  from  within 
and  without  the  university,  and  to  enliven 
with  bright  colors  the  neutral  themes  of  the 
law.  He  could  sway  the  world  both  by  his 
personal  presence,  and  in  no  less  degree  by 
his  writings.  It  is  natural  to  speculate  as 
to  what  might  have  been  the  career  of  such 
a  man  if  his  labors  had  dealt  not  alone  with 


3ntrotwctton 


the  learned  public,  but  with  the  unorganized 
and  unthinking  masses  in  issues  more  stirring 
than  the  unemotional  materials  of  legal 
science.  At  a  hospitable  juncture  he  might 
have  created  or  subverted  a  dynasty.  The 
literary  quality  of  Jhering's  writing  is  well 
shown  in  the  opening  lines  of  his  "Geist," 
which  might  be  mistaken  for  the  stately 
measures  of  a  sonorous  epic.  Another  phase 
is  exhibited  in  the  address  here  published. 
Never  before  has  a  moral  duty  been  asserted 
with  such  eloquence;  never  before  has  a  "lay 
sermon  addressed  to  the  conscience"  i  been 
more  spontaneously  and  widely  accepted. 
Within  two  years  this  address  went  into 
twelve  editions,  and  although  first  published 
in  German  more  than  forty  years  ago,  it  is 
still  being  republished,  the  last  German 
edition  being  the  eighteenth.     At  this  time 

1  Munroe  Smith,  "Four  German  Jurists,"  Pol.  Sc.  Q.,  xi,  301. 
Prof.  Smith  heard  Jhering  lecture  on  Roman  law,  and  his  able  essay- 
therefore  sounds  an  intimate  note  which  adds  to  the  value  of  his 
analysis.  This  study  also  shows  the  dominating  importance  of 
Jhering,  and  Prof.  Smith's  essay  might  well  have  been  entitled 
"Jhering  and  Three  other  German  Jurists,"  for  the  others  are  only 
as  foils  in  the  play. 

XI 


Sntrobuction 


it  has  appeared  in  nearly  thirty  different 
languages,  including  Japanese.  There  have 
been  two  translations  into  English,  the  present 
rendering  by  Mr.  Lalor  first  published  by 
Messrs.  Callaghan  &  Co.  in  1879,  and  a 
version  published  at  London  in  1884  under 
the  title  "Battle  for  Right."  The  present 
work  has  even  been  the  inspiration  of  a 
novel  by  Karl  Emil  Franzos  published  (1882) 
under  the  same  German  title. 

The  books  of  jurists  do  not  usually  come 
within  the  mental  range  of  the  so-called 
general  reader;  as  a  rule  they  are  limited  to 
some  definite  system  of  law  and  to  those 
technically  learned  in  that  system.  A  large 
part  of  Jhering's  writings,  however,  carries 
an  interest  uncircumscribed  by  geographical 
boundaries,  and  has  gained  the  widest  re- 
ception of  perhaps  any  European  jurist,  not 
alone  among  those  learned  in  the  law,  but 
also  among  the  cultured  lay  classes.  It  is 
not  difficult  to  understand  this  fortunate 
and  unusual  extension  of  Jhering's  fame;  for 
it    appears    to    rest   on    two    chief    grounds: 

xii 


3lntrotiuction 


first,  that  he  treated  by  preference  what 
Austin  has  called  pervasive  legal  ideas  — 
ideas  of  universal  significance,  ideas  un- 
limited by  the  accidents  of  history,  or  the 
particularities  of  legal  systems;  and,  second, 
that  he  had  the  faculty  of  powerful  literary 
presentation.  Jhering  was  a  philosopher  in 
the  law,  if  not  of  the  law,  and  had  he  been 
less,  it  is  not  unlikely  that  he  would  have 
remained  a  national  factor  of  limited  im- 
portance, instead  of  becoming  an  international 
figure. 

Comparative  biography  was  a  completely 
realized  art  before  comparative  law  was 
even  thought  of;  and  writers  who  have  dealt 
with  the  lives  of  jurists  have  commonly  re- 
sorted to  the  comparative  method.  In  the 
case  of  Jhering  the  counter  balance  naturally 
has  been  either  Windscheid  (who  died  in  the 
same  year  and  within  a  few  weeks  of  Jhering, 
and  whose  span  of  life  was  almost  identical 
with  his),  or  Savigny,  the  most  conspicuous 
representative  of  the  Historical  School.  The 
dissimilarities    are    striking    in    either    case 

xiii 


Untrobuction 


whether  we  consider  the  contrasted  figures 
either  from  the  point  of  view  of  personality, 
method,  or  ideas.  Savigny,  aside  from  being 
the  leader  of  a  great  school,  was  the  greatest 
Romanist  of  the  first  half  of  the  nineteenth 
century.  Jhering  at  the  age  of  24  had  written 
a  doctoral  study,  "De  hereditate  possidente" 
(Berlin,  1842),  which  already  was  considered 
a  "remarkable  dissertation,"  and  when  in 
1852  (at  the  age  of  34)  he  published  the 
first  volume  of  his  "Geist,"  the  star  of 
Savigny's  genius  paled  in  the  glare  of  Jhering's 
rising  fame. 

The  theory  of  the  Historical  School,  of  an 
unconscious  growth  of  law,  was  contradicted 
by  Jhering,  who  insisted  on  conscious  purpose 
as   the   dominant  factor  of  legal   evolution.1 

Two  observations  may  be  permitted  at 
this  point:  first,  that  fundamental  theories 
in    the    science    of    law    necessarily    produce 

1  Tanon,  "L'Evolution  du  Droit  et  la  Conscience  Sociale"  (3d 
ed.,  Paris,  1911),  p.  44  seq.  This  part  of  Judge  Tanon's  essay  has 
been  translated  as  an  appendix  to  Jhering,  "Law  as  a  Means,"  etc. 
(see  note  p.  ix,  supra);  Alessandro  Levi,  "Contributi  ad  una  Teoria 
filosofica  dell'  ordine  giuridico,"     Sec.  34,  p.  402  seq. 

xiv 


Sntrofcuctton 


important  consequences  either  first  or  last 
in  any  legal  system.  The  legislative  era 
could  not  have  come  to  pass  so  long  as  the 
Historical  School  remained  in  the  ascendancy. 
If  it  is  to  be  supposed  that  Savigny  intended 
to  assert  an  irremediable  lack  of  competence 
in  the  people  to  attain  the  conscious  stage 
of  legislation,  then  that  distinguished  jurist 
was  spared  some  part  of  the  mental  anguish 
of  witnessing  the  historical  refutation  of 
such  a  position,  had  his  life  been  prolonged 
another  quarter  of  a  century.  He  himself 
became  Prussian  minister  for  the  revision 
of  legislation,  and  lived  to  see  the  formulation 
of  the  General  German  Bills  of  Exchange 
Code  (1847)  and  the  General  German  Com- 
mercial Code  (1861)  in  the  time  of  the  "  Bund" ; 
but  a  benignant  fate  closed  his  eyes  before 
the  date  of  the  imperial  statute  (1873)  which 
authorized  a  commission  to  codify  the  whole 
domain  of  private  law,  resulting  finally  (1896) 
in  the  enactment  of  the  German  Civil  Code. 
The  second  observation  is  that  any  asser- 
tion  of   a    simple   unifying   principle   in   the 

XV 


Sntrobuctton 


realm  of  causality  is  likely  to  assert  too 
much.  It  is  entirely  clear  to  us  now  that 
there  was  an  important  element  of  truth  in 
the  theory  of  an  unconscious  development  of 
law;  it  is  equally  apparent  that  the  principle 
of  purpose  is  also  true.  The  error  lies  only 
in  claiming  an  exclusive  operation  for  either 
theory  of  law.  It  is,  however,  one  of  the 
most  interesting  phases  of  historical  study 
to  trace  out  the  actions  and  reactions  of 
ideas,  and  Jhering  was  a  man  who  was  able 
to  do  this  with  a  lofty  and  inspired  outlook 
on  the  manifold  complication  in  the  restless 
flow  of  life.  The  ascending  spiral  of  evolu- 
tion of  juristic  thought  is  plainly  visible,  to 
speak  only  of  recent  centuries,  in  the  age  of 
rationalism  with  its  revolutionary  by-product 
which  gave  way  to  an  era  of  reactionary 
conservatism  in  the  Historical  School,  and 
which  later  is  supplanted  by  the  epoch  of 
legislation  and  socialization  of  the  law.  But, 
now,  to  attempt  a  simple  generalization  of 
causality  in  history,  even  with  our  better 
fortified  knowledge,   and  in  the  light  of  an 

xvi 


Sntrotmctton 


accumulation  of  experience,  would  likely  be 
as  dangerous  and  as  inadequate  as  before. 
It  should  be  noticed  that  when  we  speak  of 
causality  we  enter  the  sphere  of  the  historian 
and  jurist,  provinces  where  Jhering  attained 
his  surest  fame.  It  is  true  that  Jhering  later 
attempted  the  treacherous  problem  of  finality 
—  a  problem  perilous  even  for  the  trained 
philosopher  —  but  it  is  believed  that  if  he 
had  restricted  himself  to  his  earlier  aspira- 
tions that  his  labors  would  have  remained  a 
standing  monument  of  unquestioned  juristic 
scholarship  throughout  the  corroding  pro- 
cesses of  time. 

Merkel  makes  an  illuminating  comparison 
between  Savigny  and  Jhering  sufficient  in 
itself  to  explain  the  differences  of  character 
of  these  two  great  civilians.1  Savigny,  he  says, 
retired  to  the  shadows  of  his  canvas.  Both 
were  masters  of  expression,  but  Savigny  hid 
his  personality  behind  his  work,  while  Jhering 
projected  himself  in  living  reality  in  every 
line.    He  attempted,  as  Merkel  again  says,  to 

1  Op.  cit.  (p.  ix  note  1,  supra), 
xvii 


3ntrotJUCtton 


carry  his  reader  by  storm.  Savigny  sheltered 
himself  in  a  mantle  of  reserve  and  directed 
his  forces  of  ideas  from  a  sequestered  distance, 
while  Jhering  waged  his  battles  on  the  firing 
line  and  determined  the  issues  of  war  by  the 
commanding  aid  of  his  conquering  presence. 

Of  Windscheid,  who  was  the  great  figure 
at  Vienna  when  Jhering  was  the  chief  attrac- 
tion at  Göttingen,  we  may  speak  again  in 
connection  with  a  fundamental  legal  theory 
which  has  turned  out  to  be  of  the  greatest 
practical  moment,  and  which  has  been  a 
point  of  great  controversy  in  German  legal 
science  for  several  decades.1  Windscheid 
defined  rights  from  the  standpoint  of  pro- 
tection of  the  will,2  while  Jhering  made 
interests  the  essence  of  rights.  The  logical 
consequences  of  Windscheid's  view  is  a  for- 
mal, individualistic,  and  unhistorical  concep- 
tion of  law;  while  Jhering's  definition,  on  the 

1  Gareis,  "Introduction  to  the  Science  of  Law"  ("Modern  Legal 
Philosophy  Series,"  i),  p.  33. 

2  "Recht  ist  eine  von  der  Rechtsordnung  verliehene  Willensmacht 
oder  Willensherrschaft," — Windscheid,  "Lehrbuch  des  Pandekt- 
enrechts," 9th  ed.  (Kipp),  1906,  erster  Band,  p.  156  (and  note  3). 


Sntrotmction 


contrary,  leads  to  the  exact  opposites,  and 
invests  the  law  with  a  positive  social  func- 
tion.1 Windscheid  adhered  to  his  position 
to  the  last,  but  Jhering's  view  has  attracted 
the  greater  number  of  followers,  and  seems 
more  nearly  to  indicate  the  real  nature  of 
rights  as  accepted  by  any  of  the  present-day 
schools  of  legal  philosophy. 

Without  the  notion  of  interests,  formulated 
by  Jhering  in  the  "Geist,"  he  could  not  have 
reached  the  conception  of  the  "Zweck." 
If  rights  are  legally  protected  interests,  it 
follows  that  the  State  must  determine  what 
interests  it  will  select  as  fit  for  protection, 
and  this  question  then  logically  develops  the 
further  inquiry  of  purpose  in  the  law,  which 
Jhering  stated  in  the  form  of  the  principle, 
"the  object  is  the  creator  of  the  law."  On 
this  three-rung  ladder  of  reasoning,  he  at- 
tempted to  ascend  the  philosophic  heights, 
and  whatever  may  be  thought  of  his  efforts 
it  cannot  be  doubted  that  he  laid  a  pragmatic, 

1  Roscoe  Pound,  "The  Scope  and  Purpose  of  Sociological  Juris- 
prudence," Harvard  Law  Rev.,  xxv,  2,  143;  Korkunov,  "Theory  of 
Law"  (Hasting's  tr.)  ("Modern  Leg.  Phil.  Ser.,"  iv),  p.  107  seq. 


3ntrobuction 


if  not  a  metaphysical,  foundation  for  a  new- 
juristic  construction  which  enabled  the  law 
to  emerge  from  the  blind  alley  into  which  it 
had  entered  in  following  Kant. 

It  is  perhaps  still  a  question  whether  phi- 
losophies create  movements  in  the  outer 
world,  or  whether  they  only  reflect  or  follow 
these  movements;  but  in  any  case  the  social 
utilitarianism  of  Jhering  came  in  season  to 
synchronize  with  the  most  significant  develop- 
ment of  the  law  in  modern  times  —  the  change 
from  the  individual  to  the  social  emphasis. 
Jhering's  solution  was  not,  however,  the  only 
escape  from  Kant's  blind  alley.  The  Neo- 
Kantians,  too,  have  become  social  utilitarians, 
but  their  State  yet  has  the  negative  char- 
acter of  a  "Rechtsstaat."  Stammler,  the 
leading  exponent  of  a  revised  Kantianism, 
is  unable  to  lay  down  a  single  positive  prin- 
ciple to  govern  the  attitudes  of  the  law.  The 
difference  between  "do  not"  and  "do"  is  all 
that  separates  the  civilizations  of  the  Orient 
and  Occident,  and  a  system  of  legal  phi- 
losophy which  makes  the  function  of  the  State 

XX 


Sntrobuctton 


no  different  from  that  of  a  street-crossing 
policeman  can  never  be  productive  of  any- 
thing less  unprogressive  than  a  Chinese 
system  of  law.  Even  with  its  philosophic 
and  psychological  shallowness,  the  "Zweck" 
of  Jhering  is  therefore  to  be  preferred  over 
the  "Richtiges  Recht"  of  Stammler. 

Compared  with  an  encyclopedic  creator 
like  Köhler,  who  many  years  ago  engaged  in  a 
typically  German  exchange  of  ideas  with 
Jhering  in  connection  with  the  Shylock  prob- 
lem raised  in  this  work,1  but  who  has  lived 
to  supplant  Jhering  in  the  kingdom  of  fame 
and  take  unto  himself  the  extraordinary 
distinction  of  the  world's  juristic  leadership, 
the  latter's  works  are  not  extensive  beyond 
expectation  either  in  bulk  or  item. 

Briefly,  Jhering's  works  are  the  following: 
(1)  "Abhandlungen  aus  dem  römischen 
Recht"  (1844);  (2)  " Civilrechtsf alle  ohne 
Entscheidungen"  (1847);  (3)  "Geist  des 
römischen    Rechts     auf    den     verschiedenen 

1  Kohler,  "Shakespeare  vor  dem  Forum  der  Jurisprudenz," 
(Würzburg,  1883),  and  "Nachwort"   (1884). 

xxi 


Sntrotmctton 


Stufen  seiner  Entwicklung"  (4  vols.,  1852— 
65);  (4)  "Das  Schuldmoment  im  römischen 
Privatrecht"  (1867);  (5)  "Über  den  Grund 
des  Besitzeschutzes"  (1868);  (6)  "Die  Juris- 
prudenz des  täglichen  Lebens"  (1870);  (7) 
"Der  Kampf  ums  Rechts"  (1872)  (the  present 
work);  (8)  "Der  Zweck  im  Recht"  (2  vols., 
1877-83);  (9)  "Vermischte  Schriften  juris- 
tischen Inhalts"  (1879);  (10)  "Gesammelte 
Aufsätze"  (3  vols.  1881-86);  (11)  "Das 
Trinkgeld"  (1882);  (12)  "Scherz und  Ernst  in 
der  Jurisprudenz"  (1885);  (13)  "Der  Besitz- 
wille: Zugleich  eine  Kritik  der  herrschenden 
juristischen  Methode"  (1889);  and  posthu- 
mously: (14)  "Vorgeschichte  der  Indo-Euro- 
päer"  (1894);  (15)  "Entwickelungsgeschichte 
des  römischen  Rechts:  Einleitung"  (1894). 1 

1  Jhering  has  been  fortunate  above  all  his  jurist  contemporaries 
in  a  wide  and  important  extension  of  his  writings  into  foreign  tongues. 
The  "Geist"  (No.  (3)  ),  and  several  of  his  other  works  have  been 
translated  into  French;  there  has  also  been  an  Italian  translation  of 
the  "Geist,"  and  further  translations  based  on  the  French,  into 
Portuguese,  Spanish,  and  Japanese.  Although  no  European  jurist 
is  better  known  in  America  or  England  than  Jhering,  there  has  un- 
fortunately been  no  English  translation  of  this  work,  parts  of  which 
are  of  great  importance  for  what  Austin  calls  "general,"  and  what 
Salmond  styles  "theoretical"  jurisprudence. 

The  "Jurisprudenz"  (No.  (6)  )  according  to  the  author's  preface 

xxii 


3Jntrobuctton 


Jhering  labored  diligently  until  the  last, 
and  although  more  than  seventy  years  of  age 
at  his  death,  he  left  behind  him  many  things 
in  preparation,  unaccomplished.  His  im- 
pulse to  create  was  boundless;  each  idea 
developed  a  series  of  more  general  ideas,  and 
his  physical  body  was  unable  to  keep  pace 
with  his  mental  activity.  For  this  reason, 
his  chief  works  are  admittedly  only  fragments. 

to  the  eighth  edition  (1891)  had  been  then  already  translated  into 
Italian,  Hungarian,  Greek,  and  (in  abridged  form)  into  Portuguese. 
An  English  translation  has  been  done  by  Henry  Goudy  (Oxford, 
1904).  This  work  is  considerably  used  by  teachers  to  good  ad- 
vantage; the  present  writer  has  found  it  useful  in  examinations  in 
analytical  jurisprudence.  Jhering's  keen  sense  of  legal  realities  is 
here  shown  developed  to  the  highest  degree.  No  one  but  a  man 
thoroughly  saturated  with  the  feeling  of  the  omnipresence  of  the  law 
and  legal  relations  would  think  of  raising  the  question  whether  a 
guest  at  a  hotel  can  take  away  the  candles  with  which  he  has  been 
charged,  or  whether  he  can  put  into  his  pocket  fruit  served  at  the 
dinner  table  (Goudy's  translation,  p.  24).  Dr.  Wigmore,  dean  of 
Northwestern  University  School  of  Law,  perhaps,  under  the  sug- 
gestion of  this  notable  use  of  the  incidents  of  everyday  life,  has 
published  in  his  casebook  on  torts  a  collection  of  instances  very 
similar  in  their  novelty,  interest,  and  analytical  value. 

The  "Zweck"  (No.  (8)  )  has  been  translated  into  French  and  the 
first  volume  is  soon  to  be  issued  [now  out]  in  an  English  translation  of 
Dr.  Isaac  Husik  of  the  University  of  Pennsylvania  ("Modern  Legal 
Philosophy  Series,"  Vol.  v),  by  The  Boston  Book  Company.  This 
translated  volume  will  contain  valuable  introductory  material  which 
the  present  writer  regrettably  was  not  able  to  consult. 

Legal  humor  is  an  ancient  institution;  it  is  the  agency  which 
humanizes  the  bloodless  operations  of  the  legal  machine.  Even  the 
Olympian  gods  indulged  their  levities,  and  did  not  narrow  themselves 

xxiii 


Sntrobuction 


The  "Geist"  remained  uncompleted  when  he 
conceived  the  "Zweck,"  and  the  latter  work 
was  only  a  part  of  his  plan  to  treat  the  whole 
domain  of  the  normative  divisions  of  social 
life.  The  present  work  was  a  fragment  thrown 
off  in  the  development  of  the  "Zweck." 

Of  Jhering's  achievement  the  "Geist"  will 
no   doubt   be   permanently   regarded    as    his 


to  councils  of  lightnings  and  thunderbolts.  Juristic  humor,  how- 
ever, is  something  quite  unknown  in  our  literature.  The  nearest 
approach,  to  take  a  recent  example,  is  Sir  Frederick  Pollock's  "Genius 
of  the  Common  Law,"  a  work  dealing  with  the  strains  and  thrusts  of 
our  legal  system.  The  chapter  entitled  "Surrebutter  Castle"  shows 
what  a  lighter  touch  may  do  with  such  a  recondite  and  bitter  subject 
as  special  pleading.  But  Sir  Frederick's  humor  in  comparison  with 
von  Jhering's  is  always  somewhat  Saturnine,  or,  even  from  another 
point  of  view,  Euclidean.  Jhering's  contribution  to  this  form  of 
writing  is  his  "Scherz  und  Ernst"  (No.  (12)  )  which  is  made  up  of 
anonymous  articles  published  while  he  was  at  Giessen,  and  "Talks  of 
a  Civilian"  published  at  Vienna.  The  vehicle  is  one  of  amiability, 
but  the  theme  is  a  serious  one  for  the  law.  It  may  be  considered  a 
loss  to  us  that  this  work  is  not  in  English,  since  the  problems  raised 
there  are  just  now  of  special  interest  in  view  of  the  widespread 
changes  which  are  giving  an  entirely  new  character  to  the  whole 
face  of  the  Common  Law. 

Of  the  remaining  works  the  "Vorgeschichte"  (14)  has  also  been 
translated  into  English.  This  work  has  not  added  anything  to 
Jhering's  fame,  and  it  may  be  questioned  whether  he  had  suffi- 
ciently familiarized  himself  with  the  extensive  range  of  working 
materials  upon  which  such  an  ambitious  undertaking  should  of 
necessity  be  founded.  This  work  therefore  in  the  field  of  universal 
history  is  defective  for  the  same  reason  as  the  "Zweck"  in  the 
department  of  general  philosophy,  in  that  it  attempted  problems 
beyond  the  author's  special  knowledge  and  experience. 


Kntrobuctton 


greatest  effort.1  When  it  began  to  be  pub- 
lished, Rudorff,  a  civilian  of  the  Historical 
School,  referred  to  it  in  terms  of  reproach 
in  his  "History  of  Roman  Law"  (1857-59); 
but  this  reflection  was  one  of  the  last  feeble 
groans  of  an  expiring  and  superseded  theory  of 
law.  How  frequently  a  fond  parent  is  unable 
to  judge  impartially  and  justly  of  his  own 
children  is  shown  in  the  history  of  literature. 
Jhering  rated  his  "Zweck"  far  above  his 
"Geist,"  and  could  he  have  realized  that  the 
judgment  of  posterity  would  be  otherwise,  it 
would  no  doubt  have  been  for  him  a  matter  of 
keen  disappointment  even  though  his  preface 
to  the  "Zweck"  foreshadows  the  result. 

Jhering's  creative  period  may  be  divided 
conveniently  into  two  parts,  taking  his  fiftieth 
year  as  the  point  of  separation.  The  works 
of  the  earlier  period  are  distinctly  to  be 
preferred  against  the  labors  of  his  later  years. 
Although  there  seems  to  have  been  no  abate- 
ment of  his  dynamic  force  in  the  growth  of 

1  But  cf.  Berohheimer,  "The  World's  Legal  Philosophies"  (Mrs. 
Jastrow's  ir.)  ("Mod.  Leg.  Phil.  Ser.,"  ii),  p.  337  seq. 

XXV 


Sntrobuctüm 


years,  there  is  apparent  a  gradual  declina- 
tion in  the  sound  value  of  their  fruits.  His 
posthumous  writings  are  decidedly  in  con- 
trast, and  to  their  disadvantage,  with  the 
studies  of  his  earlier  years.1  He  rose  up  out 
of  a  national  law  to  an  universal  law,  but  as 
his  ideas  became  more  general  they  also  at 
the  last  became  more  tenuous.  As  a  realist 
confining  himself  to  facts  which  he  apprehend- 
ed with  the  intuition  of  genius,  and  dealing 
with  "practica"  he  was  incomparable;  but 
when  he  attempted  the  flight  into  an  alien 
country  he  left  behind  him  the  substantial 
products  of  a  vigorous  and  fertile  intellect  to 
enter  a  domain  as  empty  as  the  "Begriffs- 
himmel" created  by  him  for  the  Romanists. 

Jhering's  claim  to  great  distinction  may  be 
said  to  rest,  in  summary,  on  the  following 
grounds : 

1.  He  universalized  Roman  law,  approving 
at  once  its  reception,  and  the  changes  which 
had  been  made  in  it  in  the  middle  ages,  and 
thus  took  a  middle  ground  which  compromised 

1  See.  Posener,  "Rechtslexikon,"  i,  s.  v.  "Jhering." 


3Jntroi)uction 


in  effect  the  rigid  nationalism  of  the  Historical 
School  and  the  patriotic  clamors  of  the  Ger- 
manists.  The  Romanists  would  have  imposed 
upon  the  country  the  Byzantine  law,  while 
the  Germanists  would  have  destroyed  it 
root  and  branch.  Jhering's  attitude  in  this 
controversy  is  shown  by  the  fact  that  jointly 
with  Gerber,  a  Germanist,  he  founded  (1856) 
a  journal  for  the  study  of  the  dogmatic  of 
modern  Roman  and  German  private  law. 
This  conflict  between  the  law  of  a  foreign  and 
extinct  empire  and  the  living  domestic  cus- 
toms was  a  heritage  of  centuries;  and  while 
the  perpetual  struggle  had  somewhat  abated, 
credit  is  due  to  Jhering  for  throwing  the  weight 
of  his  influence  in  the  direction  of  the  only 
practical  and  possible  solution  of  Germany's 
effort  to  attain  a  unified  system  of  law. 

2.  He  is  the  founder  of  modern  legal  realism, 
and  the  progenitor  on  the  juristic  side,  as 
Comte  is  the  ancestoron  the  philosophical  side, 
of  the  Sociological  School  of  Jurisprudence. 

Jhering  was  a  bitter  (if  not  always  con- 
sistent) enemy  of  the  subjective;  this  appears 


3ntrotmction 


when  he  opposes,  in  his  great  work  on  posses- 
sion, Savigny's  animus  theory;1  in  his  con- 
ception of  rights  when  he  rejects  the  will 
as  the  central  factor;  in  legal  method,  when 
he  sets  up  a  jurisprudence  of  facts  against 
a  jurisprudence  of  concepts.  The  cultivation 
of  Roman  law  had  developed  into  a  deductive 
process  of  legal  reasoning  which  sought  to 
make  the  realities  of  later  centuries  and  al- 
tered circumstances  of  elapsed  time  fit  ar- 
bitrarily the  verbal  form  of  ideas  of  the  age 
of  Paulus.2  But  yet  Jhering  was  not  the 
enemy  of  the  subjective  in  his  treatment  of 
legal  evolution  since  this  evolution  itself  is 
the  expression  of  purpose.  Law  is  not  only 
teleological  but  psychological.  The  psychol- 
ogy of  legal  institutions,  however,  must  have 
a  factual  basis,  and  can  not  be  confined,  he 
insists,  to  a  purely  conceptual  and  unhistorical 
system  of  ideas  governed  by  fixed  logical 
constructions. 

1  Munroe  Smith,  op.  cit.;  Salmond,  "Jurisprudence,"  3d  ed., 
p.  263  seq.;  Holland,  "Elements  of  Jurisprudence"  (11th  ed.),  p.  196 
seq. 

2  Sternberg,  "Allgemeine  Rechtslehre,"  erster  Teil,  p.  191  seq. 

xxviii 


HJntrofcuctton 


It  can  hardly  be  claimed  that  Jhering  was 
the  first  to  raise  the  enduring  problem  of 
legal  method,  but  never  before  or  since  has 
the  purely  conceptual  method  been  assailed 
with  greater  vigor  or  efficacy.  Jhering's 
chief  merit  here  lies  in  his  having  brought  this 
question  into  clear  relief  and  in  having  ad- 
vanced the  teleological  factor  which  resides 
in  all  legal  rules.  Neither  the  "Geist"  nor 
the  "Zweck"  contains  a  minute  and  thor- 
oughgoing analysis  of  the  problem  of  legal 
logic,  and  the  "Scherz"  was  much  too  literary 
in  quality  to  furnish  a  solution.  Jhering 
combated  the  over-extension  of  the  conceptual 
process,  but  the  ardor  of  satirical  attack  did 
not  permit  him  to  examine  to  find  the  boun- 
daries of  its  necessary  and  justifiable  operation. 
Nor  does  an  inspection  of  the  later  literature 
of  legal  method  disclose,  in  German  literature 
at  least,  except  in  a  few  noteworthy  instances, 
that  the  weapons  of  offense  have  been  melted 
down  to  implements  of  husbandry.1 

1  See  in  this  connection,  Gnaeus  Flavius  (Kantorowicz),  "Der 
Kampf  um  die  Rechtswissenschaft"  (1906),  and  the  authorities 
entered  on  p.  50.     The  realistic  trend  of  thought  which  had  its 

xxix 


Sntrotmction 


3.  Lastly  (passing  over  Jhering's  un- 
questioned prominence  as  an  historian  of  the 
Roman  law,  his  authority  on  various  special 
questions  of  dogmatic  law,  and  his  strictly 
professorial  labors),  Jhering's  great  claim  to 
distinction  is  due,  as  already  suggested,  to 
his  treatment  of  the  nature  of  legal  rights  by 
which  he  established  the  juristic  basis  for  a 
social  reconstruction  of  legal  institutions. 
His  own  interpretation  of  the  test  of  legis- 
lative policy  —  social  utility  —  may  be  re- 
jected as  amorphous,  as  a  "mollusk  of  ideas," 
without  derogating  from  the  value  and  great 
practical  importance  of  his  original  discovery. 
Unless  it  must  be  said  that  the  world  moves 
on  regardless  of  the  thoughts  of  legal  scientists 
and  legal  philosophers,  it  is  inconceivable 
that  civilized  States  could  have  broken  the 
barriers   of   the   eighteenth   century   without 


origin  in  Jhering's  war  on  the  concept  jurisprudence  is  now  known 
in  Germany  under  the  name  of  "freie  Rechtsfindung"  after  Ehrlich's 
book  of  that  title.  Strangely  enough,  this  tendency  in  legal  method 
has  attracted  representatives  from  the  most  diverse  positions  in 
legal  philosophy. 


XXX 


Sntrobuctton 


the  lever  of  Jhering's  idea.  Little  imagination 
is  needed  to  portray  a  horrible  distortion  of 
social  life  under  the  pressure  of  learning  and 
invention  of  the  last  hundred  years,  operating 
within  the  rigid  mould  of  a  "laissez  faire" 
theory  of  law,  government,  and  economics. 
On  this  count,  and  without  reference  to  what- 
ever else  he  achieved  or  conceived,  Jhering  is 
deservedly  entitled  to  a  leading  place  among 
the  world's  creative  jurists. 

Of  the  present  work,  it  may  perhaps  with 
considerable  justice  still  be  said  as  was 
claimed  by  a  competent  reviewer  on  the 
appearance  of  the  first  edition  of  this  trans- 
lation,1 that  it  is  "the  most  brilliant,  original, 
and  significant  book  on  the  genesis  and  de- 
velopment of  law  since  Montesquieu";  but 
it  may  be  asserted  with  less  provocation  to 
challenge  that  it  is  one  of  the  most  famous 
specimens  of  juristic  writing  that  the  world 
has  ever  seen.  The  introducer  may,  however, 
be  permitted  to  venture  two  brief  comments : 

lAlbany  Law  Journal,  xx,  444  (1879). 


Sntrotiuctton 


(1)  a  moral  duty  in  the  assertion  of  rights  is  an 
undemonstrable  proposition;1  and  (2)  irrita- 
tion  arising  from  an    infringement  of  one's 


1  There  need  no  ghost  from  the  grave  come  to  tell  us  that  Jhering's 
proposition  of  a  duty  to  maintain  one's  rights  before  the  law  has 
certain  affinities  with  the  doctrine  that  it  is  the  right  and  the  duty  of 
States  to  make  war.  The  same  biological  arguments  support  both 
points  of  view.  Such  militant  programs  to  be  thoroughly  consistent 
must  regard  as  undesirable  all  agencies  which  substitute  for  the 
wounds  and  destruction  of  the  combat.  In  the  struggle  for  rights, 
even  the  State  itself,  from  this  standpoint,  must  be  considered  a 
biological  obstruction.  Those  who  assert  the  moral  right  and  neces- 
sity of  nations  to  make  war  to  serve  their  interests,  do  not  hesitate  to 
say  that  "law  is  the  weakling's  game."  Jhering  as  a  lawyer  prob- 
ably could  not  have  accepted  a  principle  so  far-reaching  and  revolu- 
tionary, even  at  the  risk  of  being  inconsistent  for  his  hesitation. 
Yet  the  only  state  of  society  wherein  his  ethical  duty  of  self-assertion 
could  be  imagined  to  have  any  validity  is  one  of  political  non-inter- 
ference. In  the  primitive  days  of  private  vengeance  such  a  theory 
probably  would  need  no  qualifications;  but  as  soon  as  the  State  ceased 
to  be  a  mere  military  machine,  and  found  it  expedient  to  interfere  in 
private  quarrels  in  the  interests  of  peace,  the  biological  argument 
became  less  clear  and  the  moral  aspect  of  the  question  more  doubtful. 
For  the  ritualistic  trial  ceremonies  of  early  law  were  not  the  same  as 
the  blood  feud  either  biologically  or  ethically.  At  any  rate,  even 
though  the  litigant  fought  his  own  legal  battles,  and  would  not  at 
that  day,  as  a  matter  of  honor,  indulge  the  unmanly  ease  of  a  lawyer 
to  speak  for  him,  earthly  and  supernatural  hazards  had  intervened 
which  sometimes  thwarted  the  bristling  demands  of  courage.  And 
now,  in  the  modern  age,  when  the  State  seeks  to  do  justice  between 
the  parties,  the  hazards  of  litigation  have  become  still  more  complex 
and  fruitful.  The  modern  court  is  little  like  the  tribal  assembly,  and 
one  now  will  hardly  seek  the  law-courts  to  vindicate  his  courage  or  to 
promote  his  honor.  A  sad  chapter  could  be  written  on  the  manner 
in  which  the  State  has  discouraged  the  taste  for  litigation.  We  have 
only  to  think  in  this  connection,  among  a  number  of  things,  of  the 


xxxn 


aJntrobuction 


rights  may  sometimes  be  more  effectively 
manifested  than  by  procedural  methods.2 

Albert  Kocourek 
Northwestern  University. 

dishonored  position  of  the  witness  which  has  become  a  factor  of  no 
little  importance  in  making  a  resort  to  law  unpopular,  of  the  sensa- 
tional press  accounts,  and  of  the  machine  patterned  course  of  litiga- 
tion. It  is  unlikely  that  any  device  except  a  simple  reversion  to 
primitive  justice  could  bring  out  the  spirit  of  self-assertion  which  has 
departed  from  the  law  and  sought  other  channels  of  expression. 

2  Even  commercial  litigation  is  seeking  an  escape  from  the  delays 
and  difficulties  of  justice.  It  must  be  clear,  therefore,  that  the 
procedural  situation  offers  no  advantages  to  purely  ideal  reactions 
against  what  the  author  calls  subjective  injustice.  But  there  is  a 
deeper  reason  which  impels  self-assertion  to  seek  either  the  path  of 
"club-law,"  or,  more  likely,  silence.  When  Jhering  composed  this 
address  (1872)  he  could  hardly  have  foreseen  the  centralization  of 
trade,  industry,  credit,  and  population  which  has  within  the  last 
decades  revolutionized  the  earth.  In  ancient  society  individual 
rights  were  submerged  in  the  activities  of  the  group.  Personality 
has  never  been  quite  as  well  protected  by  the  law  as  the  claims  of 
property;  but  when  Jhering  wrote,  rights  of  individual  persons  had 
already  reached  their  highest  point  in  an  evolution  of  many  cen- 
turies. If  anything  can  be  predicted  safely  of  the  future  one  may, 
perhaps,  say  that  the  individual  is  again  rapidly  on  the  way  to  the 
loss  of  his  identity.  The  modern  world  with  its  systems,  its  effi- 
ciencies, and  its  pragmatisms  (and  we  say  it  with  regret)  is  crushing 
down  the  picturesque  freedom  and  initiative  of  the  individual.  It 
will  require  another  era  to  restore  him  to  the  position  to  which  Jhering 
would  have  exalted  him. 


XXXlll 


Cranölator'ö  Matt 

HE  following  extract  is  from  the 
preface  to  the  French  translation 
of  Dr.  von  Jhering's  essay.  The 
author,  in  the  course  of  his  work, 
refutes  the  Savigny-Puchta  theory  of  the 
origin  of  the  law.  To  explain  that  theory 
more  fully,  he  furnished  the  following  to  the 
French  translator: 

"Scarcely  was  Germany  free  from  the  wars 
of  Napoleon  I,  than  the  desire  to  see  the  laws 
of  the  nation  reduced  to  a  code  was  mani- 
fested, and  Thibaut,  one  of  the  most  renowned 
legists  of  the  period,  publicly  employed  his 
eloquence  to  promote  that  end.  There  was 
nothing  surprising  in  the  fact  that  this  wish 
did  not  find  the  least  favor  among  the  princes 
and  governments  of  Germany.  They  were 
only  too  well  aware  of  the  necessity  in  which 
their   interest   placed    them    to   preserve,    as 


CransHator'ö  j£ote 


far  as  possible,  the  existing  confusion,  both 
political  and  judicial,  of  the  country.  What 
was  most  to  be  wondered  at,  was  that  German 
lawyers  who,  it  seems,  should  have  had  only 
one  opinion  on  this  subject,  protested  against 
this  attempt,  through  the  agency  of  one  of 
their  most  illustrious  representatives,  Savigny, 
who,  in  support  of  this  protest,  published 
under  the  title:  'Vom  Beruf  unsrer  Zeit  für 
Gesetzgebung  und  Rechtswissenschaft,'  (Ber- 
lin: 1814;  3d  edition,  1840),  a  work  not,  in- 
deed, very  voluminous,  but  one  of  the  most  im- 
portant in  the  history  of  German  jurispru- 
dence. Savigny's  object  was  to  represent  as 
unreasonable  the  desire  of  reducing  the  laws  to 
a  code.  Collections  of  that  kind,  Savigny  said, 
were  after  all  more  of  an  evil  than  a  good. 
They  are  not  thought  of  in  happy  times, 
because  they  are  not  necessary.  Rome  is  an 
example  of  this  (as  if  the  laws  of  the  XII. 
Tables  and  the  Praetorian  Edicts  never  had 
existed),  and  in  unhappy  times  (like  those  in 
which  he  lived),  people  possess  neither  the 
necessary  political  education  nor  the  ability 

xxxvi 


Cranölator'ö  J^ote 


required  for  such  an  enterprise;  and  he  en- 
deavored to  prove  his  assertion  by  isolated 
passages  drawn  from  Prussian,  Austrian  and 
French  legislation  of  that  period. 

"The  irony  of  fate  decreed  that  the  corona- 
tion of  his  pupil  and  protector,  William  IV, 
should  afford  him  the  opportunity  to  exchange 
the  professor's  chair  for  the  chief  position  in 
the  Department  of  Justice,  especially  created 
for  him.  Savigny,  the  theorizer  and  opponent 
of  legislation,  had  the  weakness  to  accept  the 
post,  and  he  found  the  means  to  demonstrate 
fully  what  he  called:  'the  want  of  calling  of 
our  own  time  for  legislation,'  when  the  regula- 
tions relating  to  letters  of  exchange,  and  the 
German  commercial  code  which  appeared 
almost  in  the  same  epoch,  strikingly  dis- 
proved his  assertion. 

"The  theory  which  he  advanced  on  this 
occasion  on  customary  law  and  legislation 
was  not  entirely  new,  but  it  is  Savigny's  merit 
to  have  presented  it  in  its  scientific  light, 
and  thus  to  have  given  it  a  claim  to  be  called 
science.     According  to  this  theory,  the  earliest 

xxxvii 


^ranölator'ö  j£ote 


law  has  been,  the  world  over,  the  law  of  cus- 
tom. This  law  has  neither  been  created  nor 
sought  for.  It  came  into  existence  of  itself, 
just  as  language  came,  and  developed  inter- 
nally, in  the  convictions  of  the  people,  exter- 
nally in  the  order  of  life.  This  law  of  custom 
is  the  natural  form  of  all  law,  in  the  presence 
of  which  legislation  is  something  artificial, 
mechanical,  an  encroachment  into  the  order 
of  nature.  The  legislator  is,  so  to  speak,  to 
the  law  of  custom  what  the  physician  is  to 
nature.  Nature  should  help  itself;  the  phy- 
sician should  interfere  as  seldom  as  possible; 
for  his  very  presence  shows  that  the  normal 
condition  is  disturbed  and  that  disease  exists. 
"Thus  Savigny  entirely  reverses  the  true 
relation  established  by  the  old  teaching  be- 
tween legislation  and  the  law  of  custom.  With 
him,  the  law  of  custom  comes  first,  and  legis- 
lation afterwards.  Why? — we  ask  in  won- 
der. The  author  gives  us  no  reason  but  his 
preconceived  opinion,  according  to  which 
such  was  the  primitive  condition  of  things. 
As  the  ancient  institutions  of  the  Romans 
xxxviii 


QTranöiator'ö  j£ote 


could  not  be  traced  to  legislative  acts,  Savigny 
concludes  that  they  came  into  existence  of 
themselves.  Might  we  not  with  equal  reason, 
maintain  that  the  man  who  cannot  tell  who 
his  great-grandparents  were,  had  none?  Here 
is  the  cause  of  this  error.  The  memory  of 
the  origin  of  legal  principles  is  lost  in  the 
course  of  centuries.  That  which,  at  first,  it 
was  necessary  to  go  in  search  of,  to  obtain  by 
struggling  for,  acquires  by  long  use,  a  moral 
authority  over  minds,  so  great,  and  an  exter- 
nal fixedness  such,  that  it  seems  quite  natural 
that  it  should  have  been  always  in  force. 
Such  is  the  mirage  which  deceived  Savigny. 
His  theory  has  no  other  basis,  and  it  has  been 
possible  only  because  the  earliest  time  does 
not  tell  us  how  the  principles  of  law  came  into 
existence.  If,  as  became  the  representative 
of  the  Historical  School,  Savigny  had  framed 
his  theory  of  the  relation  of  legislation  to 
the  law  of  custom  in  accordance  with  history 
which  affords  certain  information  on  this 
question,  he  would  have  seen  that  the  opinion 
then  admitted,  and  to  which  he  attached  so 

xxxix 


{Eranölator'ö  J^ote 


little  importance,  was  entirely  true,  that 
legislation  is  the  normal  source  of  law,  and 
that  the  law  of  custom  is  simply  a  secondary 
and  limited  source  of  action.  This  opinion 
went  too  far  only  in  the  sense  that  it  ascribed 
too  much  to  the  power  of  legislation.  And, 
indeed,  the  omnipotence  of  the  legislator  was 
an  article  of  the  creed  of  the  absolutism  which 
governed  in  the  seventeenth  and  eighteenth 
centuries.  It  was  believed  that  all  that  was 
needed  to  change  the  very  nature  of  things 
was  a  decree  from  high  places,  and  juris- 
prudence itself  shared  this  belief  in  the  omnip- 
otence of  legislation.  In  this  sense,  Savig- 
ny's  opposition  to  the  admitted  doctrine  was 
most  legitimate  and  beneficent,  but  this  was 
not  sufficient  warrant  to  ignore  the  possibility 
and  efficiency  of  a  codification,  and  that 
great  man  in  combatting  an  exaggerated 
doctrine  fell  into  another  and  contrary  exag- 
geration. 

"His  theory  was  developed  and  presented 
in  detail  in  a  work  written  in  1828,  by  Puchta, 
one  of  his  most  illustrious  partisans." 

xl 


{Eranölator'ö  J^ote 


That  what  Dr.  von  Jhering  says  of  the 
origin  of  the  law  in  general  is  true  of  the 
origin  of  the  common  law  will  scarcely  be 
questioned;  and  we  may  therefore  venture  to 
say  that  this  little  work  is  likely  to  prove  as 
instructive  to  the  common  law  lawyer  as 
to  the  student  of  Roman  law.  The  "  practico- 
ethical"  question  which  it  discusses  is  one 
not  of  times  or  places.  It  is  as  urgent  in 
America  as  in  Austria,  and  especially  deserv- 
ing of  attention  in  the  United  States  at  the 
present  time. 

JOHN  J.  LALOR. 


xli 


&utf)or'ö  preface 

to  tfje  Jfiftit  Coition 

JN  the  spring  of  1872,  I  delivered, 
before  a  society  of  jurists  in  Vienna, 
a  lecture  which  I  published  in  the 
summer  of  the  same  year,  materi- 
ally enlarged,  under  the  title:  "The  Struggle 
for  Law."  In  its  latter  form,  it  was  intended 
not  for  lawyers  only,  but  for  the  general  read- 
ing public.  The  object  I  had  in  view  in 
writing  and  publishing  the  essay  was,  from 
the  first,  less  a  theoretical  than  a  practico- 
ethical  one.  I  was  concerned,  in  preparing 
it,  not  so  much  with  the  promotion  of  the 
scientific  study  of  the  law  as  with  the  cultiva- 
tion of  the  state  of  mind  from  which  the  law 
must  ultimately  derive  its  strength,  viz.:  the 
courageous  and  constant  exercise  of  the  feel- 
ing of  right. 

Two  months  after  the  appearance  of  the 

xliii 


gutfjor'a  ißreface 


first  edition,  a  second  became  necessary;  dur- 
ing the  following  year,  a  third,  and  the  year 
afterwards  a  fourth.  When  issuing  the  last, 
my  publisher  proposed  that  I  should  prepare 
a  cheap  popular  edition,  at  a  much  lower 
price,  in  order  to  give  it  as  wide  a  circulation 
as  possible.  This  end  could  be  attained  only 
by  giving  the  work  a  much  plainer  dress  and 
by  making  the  edition  unusually  large.  As 
even  the  previous  editions  had  exceeded  the 
ordinary  size,  and  as  the  foreign  market  for 
the  work  grew  smaller  and  smaller,  by  reason 
of  the  numerous  translations  made  of  it,  I 
did  not  venture  to  believe  that  a  fifth  edition 
would  become  necessary.  But  the  fact  that 
a  fifth  edition  is  called  for,  is  proof  to  me 
that  this  little  book  owed  its  success,  on  its 
first  appearance,  not  to  the  charm  of  novelty, 
but  to  the  conviction  of  a  very  large  circle  of 
people,  that  the  fundamental  view  here  advo- 
cated is  correct;  and  in  this  belief  I  am 
strengthened  by  the  many  translations  of  it 
which  have  been  made. 

The  following  translations  appeared  in  1874: 

xliv 


gutfjor'ö  preface 


1.  A  Hungarian,  by  G.  Wenzel.     Pesth. 

2.  A  Russian,  by  an  anonymous  person, 
in  a  legal  periodical  published  in  Mos- 
cow. 

3.  A  second  Russian  translation,  by  Wol- 
koff,  in  Moscow. 

4.  A  Modern  Greek  translation,  by  M.  A. 
Lappas.     Athens. 

5.  A  Dutch  translation,  by  G.  A.  Van 
Hamel.     Leyden. 

6.  A  Roumanian,  in  a  journal  published 
in  Bucharest. 

7.  A  Servian,  by  Christie.     Belgrade. 

To  these  were  added,  in  the  year  1875,  the 
following: 

8.  A  French  translation,  by  A.  F.  Meydieu. 
Vienna  and  Paris. 

9.  An  Italian,  by  Raffaele  Mariano. 

10.  A   Danish,  by  C.  G.  Graebe.      Copen- 
hagen. 

11.  A  Bohemian,  anonymously.     Brunn. 

12.  A    Polish,  by  A.  Matakiewiez.      Lem- 
berg. 

13.  A  Croatian,  by  H.  Hinkovic.     Agram. 

xlv 


&utf)or'ö  preface 


In  this  present  fifth  edition  I  have  changed 
the  style  of  the  work  somewhat,  and  entirely 
omitted  the  former  beginning  of  the  work, 
for  the  reason  that,  considering  the  meagre- 
ness  of  my  space,  it  had  to  do  with  ideas  not 
fully  intelligible  to  the  laity  nor  of  much  use 
to  lawyers.  Whether  it  would  not  have  been 
better,  in  view  of  the  large  circulation  which 
my  essay  has  found  outside  of  the  legal  pro- 
fession, to  have  omitted  all  those  parts  in- 
tended more  for  lawyers  than  for  the  laity, 
I  cannot  say.  I  have  not  done  so,  because 
the  passages  referred  to  do  not  seem  to  have 
at  all  interfered  with  the  circulation  of  the 
work  among  the  general  public,  and  because, 
perhaps,  the  lawyer  might  not  like  to  miss 
them  here. 

In  the  subject  itself,  I  have  not  changed 
anything.  I  still  consider  the  fundamental 
idea  of  the  work  so  undoubtedly  true  and 
irrefutable  that  I  look  upon  every  word  said 
in  opposition  to  it  as  lost.  The  man  who  does 
not  feel  that  when  his  rights  are  despised  and 
trampled  under  foot,  not  only  the  object  of 

xlvi 


gutfjor'ö  preface 


those  rights,  but  his  own  person,  is  at  stake; 
the  man  who,  placed  in  such  a  condition,  does 
not  feel  impelled  to  assert  himself  and  his 
rights,  cannot  be  helped,  and  I  have  no  inter- 
est in  trying  to  convert  him.  Such  a  man  is  a 
type  which  must  simply  be  acknowledged  to 
be  a  fact.  Egotism,  without  any  redeeming 
quality,  and  materialism  are  the  traits  which 
distinguish  him.  He  would  not  be  the  Sancho 
Panza  of  the  law  if  he  did  not  see  a  Don 
Quixote  in  every  one  who,  in  the  assertion 
of  his  rights,  looked  to  any  other  interests 
than  the  most  grossly  material.  To  him  I 
have  nothing  to  say  but  these  words  of  Kant, 
with  which  I  was  not  acquainted  until  after 
the  appearance  of  the  last  edition:  "When  a 
man  has  made  a  worm  of  himself,  he  cannot 
complain  if  he  is  trampled  under  foot."1  In 
another  place  Kant  calls  this  "the  casting  of 
one's  rights  under  the  feet  of  others,  and  the 
violation  of  man's  duty  to  himself."  And 
from    "duty    in    relation    to    the    dignity   of 

1  Kant,  "Metaphysiche  Anfangsgründe  der  Tugendlehre."  Aufl.  2. 
Kreuznach:  1800.     S.  133. 

xlvii 


gutyor'ö  -preface 


humanity  in  us,"  he  draws  the  maxim:  "Let 
not  your  rights  be  trampled  under  foot  by 
others  unpunished."  This  is  the  idea  which 
I  have  developed  further  in  this  little  work. 
It  is  engraven  on  the  hearts  of  all  vigorous 
individuals  and  nations,  and  has  found  expres- 
sion in  a  thousand  ways.  The  only  merit 
I  can  claim  is  that  I  have  more  fully  devel- 
oped the  idea.  An  interesting  contribution 
to  the  subject  of  my  essay  has  been  furnished 
by  Dr.  A.  Schmiedl,  in  his  "The  Struggle  for 
Law  in  its  Relation  to  Judaism  and  Early 
Christianity."  Vienna:  1875.  The  saying 
of  the  Jewish  professor:  "Whether  the  object 
of  thy  right  be  a  penny  or  a  hundred  dollars, 
let  it  be  the  same  in  thy  eyes,"  agrees  entirely 
with  the  position  I  maintain. 

I  now  leave  it  to  my  essay  itself  to  convince 
the  reader  of  the  correctness  of  the  view  which 
it  defends;  and  in  doing  so  I  have  a  double 
request  to  make  of  those  who  feel  called  upon 
to  refute  me.  I  would  ask  them,  first,  not  to 
distort  my  views  and  charge  me  with  a  desire 
to  stir  up  strife,  or  with  inculcating  a  love  of 

xlviii 


glutfjor'tf  preface 


litigiousness,  when  I  only  insist  on  the  struggle 
for  law  where  the  attack  on  one's  rights 
involves  a  slighting  of  the  person  also.  The 
disposition  which  is  ready  to  yield  or  to  be 
reconciled,  the  meek  and  philanthropic  spirit, 
the  settlement  of  disputes,  and  even  the  sur- 
render of  one's  rights  are  not  always  incom- 
patible with  my  theory.  What  it  is  opposed 
to  is  simply  the  unworthy  endurance  of 
wrong  through  cowardice  or  indolence. 

The  second  thing  I  ask  is  that  the  person 
who  seriously  desires  to  obtain  a  clear  idea 
of  my  theory,  would  make  the  attempt,  in 
the  place  of  the  positive  formula  of  practical 
procedure  which  it  develops,  to  put  another 
positive  formula.  He  will  then  soon  discover 
whither  his  course  will  lead  him.  The  ques- 
tion is:  What  should  a  man  do  when  his 
rights  are  trampled  under  foot?  The  person 
who  can  give  a  tenable  answer  to  the  question, 
that  is  an  answer  compatible  with  the  exist- 
ence of  law  and  order  and  with  the  dignity 
of  personality  has  refuted  me.  The  person 
who  cannot  do  this,  must  agree  with  me  or  be 

xlix 


gutfjor's  preface 


satisfied  with  superficiality,  the  mark  of  mud- 
dled minds,  which  may  indeed  be  rendered 
dissatisfied  and  landed  in  negation,  but  which 
can  reach  no  positive  view  of  their  own.  In 
purely  scientific  questions,  one  may  limit  him- 
self to  the  simple  refutation  of  error,  even 
when  one  is  not  in  a  way  to  point  out  the 
positive  truth;  but  in  practical  matters, 
where  it  is  certain  that  one  must  act,  and  the 
question  is  only  how  he  must  act — it  is  not 
enough  to  disregard  the  positive  directions 
given  by  another  as  wrong,  but  he  must  put 
something  in  their  place.  I  shall  wait  and 
see  whether  this  will  happen  in  respect  to 
the  positive  answer  given  by  me. 

One  word  more,  on  a  point  which  has  been 
contested  even  by  those  with  whom  I  other- 
wise agree.  I  refer  to  my  claim  that  injustice 
was  done  to  Shylock. 

I  have  not  contended  that  the  judge  should 
have  recognized  Shylock's  bond  to  be  valid; 
but  that,  once  he  had  recognized  its  validity 
he  should  not,  subsequently,  have  invalidated 
it  by  base  cunning.     The  judge  had  the  choice 

1 


gutfjor'ö  preface 


of  deciding  the  bond  valid  or  invalid.  He 
should  have  declared  it  to  be  the  latter,  but 
he  declared  it  to  be  the  former.  Shakespeare 
represents  the  matter  as  if  this  decision  was 
the  only  possible  one;  no  one  in  Venice  doubted 
the  validity  of  the  bond;  Antonio's  friends, 
Antonio  himself,  the  court,  all  were  agreed 
that  the  bond  gave  the  Jew  a  legal  right. 
And  confiding  in  his  right  thus  universally 
acknowledged,  Shylock  calls  for  the  aid  of  the 
court,  and  the  "wise  Daniel,"  after  he  had 
vainly  endeavored  to  induce  the  revenge- 
thirsty  creditor  to  surrender  his  right,  recog- 
nizes it.  And  now,  after  the  judge's  decision 
has  been  given,  after  all  doubt  as  to  the  legal 
right  of  the  Jew  has  been  removed  by  the 
judge  himself,  and  not  a  word  can  be  said 
against  it;  after  the  whole  assembly,  the  doge 
included,  have  accommodated  themselves  to 
the  inevitable  decree  of  the  law  —  now  that 
the  victor,  entirely  sure  of  his  case,  intends 
to  do  what  the  judgment  of  the  court  author- 
ized him  to  do,  the  same  judge  who  had 
solemnly  recognized  his  rights,  renders  those 

li 


gutfjor'a  preface 


rights  nugatory  by  an  objection,  a  stratagem 
so  contemptible  that  it  is  worthy  of  no  serious 
attention.  Is  there  any  flesh  without  blood? 
The  judge  who  accorded  Shylock  the  right 
to  cut  a  pound  of  flesh  out  of  Antonio's  body 
accorded  him,  at  the  same  time,  the  right  to 
Antonio's  blood,  without  which  flesh  cannot 
be.  Both  are  refused  to  the  Jew.  He  must 
take  the  flesh  without  the  blood,  and  cut  out 
only  an  exact  pound  of  flesh,  no  more  and  no 
less.  Do  I  say  too  much  when  I  assert  that 
here  the  Jew  is  cheated  out  of  his  legal  right? 
True  it  is  done  in  the  interest  of  humanity, 
but  does  chicanery  cease  to  be  chicanery 
because  practised  in  the  name  of  humanity? 
RUDOLPH  von  JHERING. 
Göttingen,  Feb.  24,  1877. 


Hi 


W$t  Struggle  for  Hato 


Cfje  Struggle  for  £ato 

CHAPTER   I 
ORIGIN  OF  THE  LAW 


HE  end  of  the  law  is  peace.  The 
means  to  that  end  is  war.  So 
long  as  the  law  is  compelled  to  hold 
itself  in  readiness  to  resist  the 
attacks  of  wrong  —  and  this  it  will  be  com- 
pelled to  do  until  the  end  of  time  —  it  cannot 
dispense  with  war.  The  life  of  the  law  is  a 
struggle, —  a  struggle  of  nations,  of  the  state 
power,  of  classes,  of  individuals. 

All  the  law  in  the  world  has  been  obtained 
by  strife.  Every  principle  of  law  which  ob- 
tains had  first  to  be  wrung  by  force  from  those 
who  denied  it;  and  every  legal  right  —  the 
legal  rights  of  a  whole  nation  as  well  as  those 
of  individuals  —  supposes  a  continual  readi- 


Cfje  Struggle  for  Hato 


ness  to  assert  it  and  defend  it.  The  law  is 
not  mere  theory,  but  living  force.  And  hence 
it  is  that  Justice  which,  in  one  hand,  holds 
the  scales,  in  which  she  weighs  the  right, 
carries  in  the  other  the  sword  with  which 
she  executes  it.  The  sword  without  the 
scales  is  brute  force,  the  scales  without  the 
sword  is  the  impotence  of  law.  The  scales 
and  the  sword  belong  together,  and  the  state 
of  the  law  is  perfect  only  where  the  power 
with  which  Justice  carries  the  sword  is  equalled 
by  the  skill  with  which  she  holds  the  scales. 

Law  is  an  uninterrupted  labor,  and  not  of 
the  state  power  only,  but  of  the  entire  people. 
The  entire  life  of  the  law,  embraced  in  one 
glance,  presents  us  with  the  same  spectacle  of 
restless  striving  and  working  of  a  whole 
nation,  afforded  by  its  activity  in  the  domain 
of  economic  and  intellectual  production. 
Every  individual  placed  in  a  position  in  which 
he  is  compelled  to  defend  his  legal  rights, 
takes  part  in  this  work  of  the  nation,  and 
contributes  his  mite  towards  the  realization 
of  the  idea  of  law  on  earth. 


origin  of  tfje  Hato 


Doubtless,  this  duty  is  not  incumbent  on 
all  to  the  same  extent.  Undisturbed  by 
strife  and  without  offense,  the  life  of  thousands 
of  individuals  passes  away,  within  the  limits 
imposed  by  the  law  to  human  action;  and  if 
we  were  to  tell  them:  The  law  is  a  warfare, 
they  would  not  understand  us,  for  they  know 
it  only  as  a  condition  of  peace  and  of  order. 
And  from  the  point  of  view  of  their  own 
experience  they  are  entirely  right,  just  as  is 
the  rich  heir  into  whose  lap  the  fruit  of  the 
labor  of  others  has  fallen,  without  any  toil 
to  him,  when  he  questions  the  principle: 
property  is  labor.  The  cause  of  the  illusion 
of  both  is  that  the  two  sides  of  the  ideas 
of  property  and  of  law  may  be  subjectively 
separated  from  each  other  in  such  a  manner 
that  enjoyment  and  peace  become  the  part 
of  one,  and  labor  and  strife  of  the  other.  If 
we  were  to  address  ourselves  to  the  latter,  he 
would  give  us  an  entirely  opposite  answer. 
And,  indeed,  property,  like  the  law,  is  a 
Janus-head  with  a  double  face.  To  some  it 
turns  only  one  side,  to  others  only  the  other; 


Cfje  Struggle  for  Hato 


and  hence  the  difference  of  the  picture  of  it 
obtained  by  the  two.  This,  in  relation  to 
the  law,  applies  to  whole  generations  as  well 
as  to  single  individuals.  The  life  of  one 
generation  is  war,  of  another  peace;  and 
nations,  in  consequence  of  this  difference  of 
subjective  division,  are  subject  to  the  same 
illusion  precisely  as  individuals.  A  long  pe- 
riod of  peace,  and,  as  a  consequence  thereof, 
faith  in  eternal  peace,  is  richly  enjoyed,  until 
the  first  gun  dispels  the  pleasant  dream,  and 
another  generation  takes  the  place  of  the  one 
which  had  enjoyed  peace  without  having  had 
to  toil  for  it,  another  generation  which  is  forced 
to  earn  it  again  by  the  hard  work  of  war. 
Thus  in  property  and  law  do  we  find  labor  and 
enjoyment  distributed.  But  the  fact  that  they 
belong  together  does  not  suffer  any  prejudice 
in  consequence.  One  person  has  been  obliged 
to  battle  and  to  labor  for  another  who  enjoys 
and  lives  in  peace.  Peace  without  strife,  and 
enjoyment  without  work,  belong  to  the  days 
of  Paradise.  History  knows  both  only  as  the 
result  of  painful,  uninterrupted  effort. 


origin  of  tfje  Hato 


That,  to  struggle,  is,  in  the  domain  of  law, 
what  to  labor,  is,  in  that  of  economy,  and, 
that,  in  what  concerns  its  practical  necessity 
as  well  as  its  moral  value,  that  struggle  is  to 
be  placed  on  an  equal  footing  with  labor  in 
the  case  of  property,  is  the  idea  which  I 
propose  to  develop  further  below.  I  think 
that  in  so  doing  I  shall  be  performing  no  work 
of  supererogation,  but,  on  the  contrary,  that 
I  shall  be  making  amends  for  a  sin  of  omission 
which  may  rightly  be  laid  at  the  door  of  our 
theory  of  law;  and  not  simply  at  the  door  of 
our  philosophy  of  law,  but  of  our  positive 
jurisprudence  also.  Our  theory  of  law,  it 
is  only  too  easy  to  perceive,  is  busied  much 
more  with  the  scales  than  with  the  sword  of 
Justice.  The  one-sidedness  of  the  purely 
scientific  standpoint  from  which  it  considers 
the  law,  looking  at  it  not  so  much  as  it  really 
is,  as  an  idea  of  force,  but  as  it  is  logically,  a 
system  of  abstract  legal  principles,  has,  in  my 
opinion,  impressed  on  its  whole  way  of  viewing 
the  law,  a  character  not  in  harmony  with  the 
bitter  reality.     This  I  intend  to  prove. 

5 


Wqt  Struggle  for  Xato 


The  term  Recht  is,  it  is  well  known,  used 
in  our  language  in  a  twofold  sense,  —  in  an 
objective  sense  and  in  a  subjective  sense. 
Thus  Recht,  in  the  objective  sense  of  the  word, 
embraces  all  the  principles  of  law  enforced  by 
the  state;  it  is  the  legal  ordering  of  life.  But 
Recht,  in  the  subjective  sense  of  the  word,  is, 
so  to  speak,  the  precipitate  of  the  abstract 
rule  into  the  concrete  legal  right  of  the  person. 
In  both  directions  the  law  meets  with  opposi- 
tion. In  both  directions  it  has  to  overcome 
that  opposition;  that  is,  it  has  to  fight  out  or 
assert  its  existence  through  a  struggle.  As 
the  real  object  of  my  consideration,  I  have 
selected  the  struggle  in  the  second  direction, 
but  I  must  not  omit  to  demonstrate  that  my 
assertion  that  to  struggle  is  of  the  very 
essence  of  the  law,  in  the  former  direction 
also,  is  correct. 

In  regard  to  the  realization  of  the  law,  on 
the  part  of  the  state,  this  is  not  contested, 
and  it,  therefore,  does  not  call  for  any  further 
exposition.  The  maintenance  of  law  and 
order  by  the  state  is  nothing  but  a  continual 

6 


origin  of  tfje  3lato 


struggle  against  the  lawlessness  which  violates 
them.  But  it  is  otherwise  in  regard  to  the 
origin  of  law,  not  only  as  to  the  origin  of 
the  most  primitive  of  all  law,  at  the  beginning 
of  history,  but  also  the  rejuvenescence  of  law 
which  is  taking  place  daily  under  our  eyes, 
the  doing  away  with  existing  institutions, 
the  putting  to  one  side  of  existing  principles 
of  law  by  new  ones;  in  short,  in  regard  to 
progress  in  the  domain  of  the  law.  For  here, 
to  the  view  which  I  maintain,  that  the  prin- 
ciples of  jurisprudence  are  subject  to  the 
same  law  in  their  origin  as  in  the  rest  of  their 
history,  there  is,  nevertheless,  another  theory 
opposed,  one  which  is  still,  at  least  in  our 
science  of  Roman  law,  universally  admitted, 
and  which  I  may  briefly  characterize  after 
its  two  chief  representatives  as  the  Savigny- 
Puchta  theory  of  the  origin  of  the  law.  Ac- 
cording to  this  theory,  the  formation  of  the 
body  of  principles  of  jurisprudence  is  effected 
by  a  process  as  unnoticed  and  as  painless  as 
is  the  formation  or  growth  of  language.  The 
building    up    of    the    body    of    principles    of 


Cfje  Struggle  for  Hato 


jurisprudence  calls  for  no  strife,  no  struggle. 
It  is  not  even  necessary,  according  to  this 
theory,  to  go  in  search  of  them,  for  the  prin- 
ciples of  jurisprudence  are  nothing  but  the 
quiet  working  power  of  truth  which,  without 
any  violent  effort,  slowly  but  surely  makes  its 
way;  the  power  of  conviction  to  which  minds 
gradually  open  and  to  which  they  give  expres- 
sion by  their  acts:  a  new  principle  of  juris- 
prudence comes  into  being  with  as  little 
trouble  as  any  rule  of  grammar.  The  prin- 
ciple of  the  old  Roman  law,  that  the  creditor 
might  sell  his  insolvent  debtor  as  a  slave 
in  foreign  parts,  or  that  the  owner  of  a  thing 
might  claim  it  from  any  one  in  whose  posses- 
sion he  found  it,  would  have  been  formed  in 
ancient  Rome,  according  to  this  view,  scarcely 
in  any  other  manner  than  that  in  which  the 
grammatical  rule  that  cum  governs  the  ab- 
lative was  formed. 

This  is  the  idea  of  the  origin  of  the  law 
which  I  myself  had  when  I  left  the  university, 
and  under  the  influence  of  which  I  lived  for 
a  good  many  years.     Has  this  idea  any  claim 

8 


origin  of  tfje  Hato 


to  truth?  It  must  be  admitted  that  the  law, 
like  language,  has  an  unintended,  unconscious 
development,  or,  to  call  it  by  the  traditional 
expression,  an  organic  development  from 
within  outward.  To  this  development,  we 
owe  all  those  principles  of  law  which  are 
gradually  accumulated  from  the  autonomous 
balancing  of  the  accounts  of  the  legal  rights 
of  men  in  their  dealings  with  one  another, 
as  well  as  all  those  abstractions,  consequences 
and  rules  deduced  by  science  from  existing 
laws,  and  presented  by  it  to  the  consciousness. 
But  the  power  of  these  two  factors,  the  inter- 
course of  man  with  man,  and  science,  is  a 
limited  one.  It  can  regulate  the  motion  of 
the  stream,  within  existing  limits,  and  even 
hasten  it;  but  it  is  not  great  enough  to  throw 
down  the  dikes  which  keep  the  current  from 
taking  a  new  direction.  Legislation  alone 
can  do  this;  that  is,  the  action  of  the  state 
power  intentionally  directed  to  that  end;  and 
hence  it  is  not  mere  chance,  but  a  necessity, 
deeply  rooted  in  the  nature  of  the  law,  that 
all  thorough  reforms  of  the  mode  of  procedure 


Cfje  Struggle  for  Hato 


and  of  positive  law  may  be  traced  back  to 
legislation.  True  it  is,  that  the  influence  of 
a  change  made  by  the  legislative  power  in 
the  existing  law  may  possibly  be  limited 
entirely  to  the  sphere  of  the  abstract,  without 
extending  its  effects  down  into  the  region  of 
the  concrete  relations  which  have  been  formed 
on  the  basis  of  the  law  hitherto  —  to  a  new 
change  in  the  machinery  of  law,  a  replacing 
of  a  worn  out  screw  or  roller  by  a  more  perfect 
one.  But  it  very  frequently  happens  that 
things  are  in  such  a  condition  that  the  change 
can  be  effected  only  at  the  expense  of  an  ex- 
ceedingly severe  encroachment  on  existing 
rights  and  private  interests.  In  the  course  of 
time,  the  interests  of  thousands  of  individuals, 
and  of  whole  classes,  have  become  bound  up 
with  the  existing  principles  of  law  in  such  a 
manner  that  these  cannot  be  done  away  with, 
without  doing  the  greatest  injury  to  the 
former.  To  question  the  principle  of  law 
or  the  institution,  means  a  declaration  of 
war  against  all  these  interests,  the  tearing 
away   of    a    polyp    which    resists    the    effort 

10 


origin  of  tfje  Xato 


with  a  thousand  arms.  Hence  every  such 
attempt,  in  natural  obedience  to  the  law  of 
self-preservation,  calls  forth  the  most  violent 
opposition  of  the  imperiled  interests,  and 
with  it  a  struggle  in  which,  as  in  every  struggle, 
the  issue  is  decided  not  by  the  weight  of 
reason,  but  by  the  relative  strength  of  oppos- 
ing forces;  the  result  being  not  infrequently 
the  same  as  in  the  parallelogram  of  forces  — 
a  deviation  from  the  original  line  towards 
the  diagonal.  Only  thus  does  it  become 
intelligible,  that  institutions  on  which  public 
opinion  has  long  since  passed  sentence  of 
death  continue  to  enjoy  life  for  a  great  length 
of  time.  It  is  not  the  vis  inertice  which  pre- 
serves their  life,  but  the  power  of  resistance 
of  the  interests  centering  about  their  exist- 
ence. 

But  in  all  such  cases,  wherever  the  existing 
law  is  backed  by  interests,  the  new  has  to 
undergo  a  struggle  to  force  its  way  into  the 
world  —  a  struggle  which  not  infrequently 
lasts  over  a  whole  century.  This  struggle 
reaches  its  highest  degree  of  intensity  when 

ii 


&fje  Struggle  for  Hato 


the  interests  in  question  have  assumed  the 
form  of  vested  rights.  Here  we  find  two 
parties  opposed  each  to  the  other,  each  of 
which  takes  as  its  device  the  sacredness  of 
the  law;  the  one  that  of  the  historical  law, 
the  law  of  the  past;  the  other  that  of  the  law 
which  is  ever  coming  into  existence,  ever 
renewing  its  youth,  the  eternal,  primordial 
law  of  mankind.  A  case  of  conflict  of  the 
idea  of  law  with  itself  which,  for  the  individ- 
uals who  have  staked  all  their  strength  and 
their  very  being  for  their  convictions  and 
finally  succumb  to  the  supreme  decree  of 
history,  has  in  it  something  that  is  really 
tragic.  All  the  great  achievements  which 
the  history  of  the  law  has  to  record  —  the 
abolition  of  slavery,  of  serfdom,  the  freedom 
of  landed  property,  of  industry,  of  con- 
science, etc. —  all  have  had  to  be  won,  in 
the  first  instance,  in  this  manner,  by  the  most 
violent  struggles,  which  often  lasted  for 
centuries.  Not  infrequently  streams  of  blood, 
and  everywhere  rights  trampled  under  foot, 
mark  the  way  which  the  law  has  traveled 

12 


«origin  of  tfje  Hato 


during  such  conflict.  For  the  law  is  Saturn 
devouring  his  own  children.  The  law  can 
renew  its  youth  only  by  breaking  with  its 
own  past.  A  concrete  legal  right  or  principle 
of  law,  which,  simply  because  it  has  come 
into  existence,  claims  an  unlimited  and  there- 
fore eternal  existence,  is  a  child  lifting  its 
arm  against  its  own  mother;  it  despises  the 
idea  of  the  law  when  it  appeals  to  that  idea; 
for  the  idea  of  the  law  is  an  eternal  Becoming; 
but  that  which  has  Become  must  yield  to 
the  new  Becoming,  since 

Alles  was  entsteht, 


Ist  werth  dass  es  zu  Grunde  geht. 

And  thus  the  historical  development  of 
law  presents  us  with  a  picture  of  research, 
struggle,  fight,  in  short  of  toilsome,  wearying 
endeavor.  The  human  mind  working  uncon- 
sciously towards  the  formation  of  language 
is  met  by  no  forcible  resistance,  and  art  has 
no  opponent  to  overcome  but  its  own  past  — 
the  prevailing  taste.  It  is  not  so  with  law 
considered  as  an  end.  Cast  into  the  chaotic 
whirl   of  human   aims,   endeavors,   interests, 

13 


GTfje  Struggle  for  Hato 


it  has  forever  to  feel  and  seek  in  order  to  find 
the  right  way,  and  when  it  has  found  it,  to 
overthrow  the  obstacles  which  would  impede 
its  course.  If  it  be  an  undoubted  fact,  that 
this  development,  like  that  of  art  or  language, 
is  governed  by  law  and  is  uniform,  it  cannot 
be  denied  that  it  departs  largely  from  the 
latter  in  the  manner  in  which  it  takes  place; 
and  in  this  sense,  therefore,  we  are  compelled 
decidedly  to  reject  the  parallel  instituted  by 
Savigny  —  a  parallel  which  found  universal 
favor  so  rapidly — between  law  on  the  one 
hand  and  language  and  art  on  the  other. 
This  doctrine  is  false,  but  not  dangerous  as 
a  philosophical  opinion.  As  a  political  max- 
im, however,  it  contains  an  error  pregnant 
with  the  most  ominous  consequences  imagi- 
nable, because  it  feeds  man  with  hope  where 
he  should  act,  and  act  with  a  full  and  clear 
consciousness  of  the  object  aimed  at,  and 
with  all  his  strength.  It  feeds  him  with  the 
hope  that  things  will  take  care  of  themselves, 
and  that  the  best  he  can  do  is  to  fold  his 
arms    and    confidently   wait    for   what    may 


origin  of  tfje  Hato 


gradually  spring  to  light  from  that  primitive 
source  of  all  law  called:  the  natural  conviction 
of  legal  right.  Hence  the  aversion  of  Savigny 
and  of  all  his  disciples  to  the  interference  of 
legislation,  and  hence  the  complete  ignoring 
of  the  real  meaning  of  custom,  in  the  Puchta 
theory  of  the  law  of  custom.  Custom  to 
Puchta  is  nothing  but  a  mere  mode  of  dis- 
covering the  conviction  as  to  what  is  legally 
right:  but  that  this  very  conviction  is  first 
formed  through  the  agency  of  its  own  action, 
that  through  this  action  it  first  demonstrates 
its  power  and  its  calling  to  govern  life;  in 
short  that  the  principle:  the  law  is  an  idea 
which  involves  force  —  to  this  the  eyes  of 
this  great  mind  were  entirely  closed.  But, 
in  this,  Puchta  was  only  paying  tribute  to 
the  time  in  which  he  lived.  For  his  time 
was  the  romantic  in  our  poetry,  and  the 
person  who  does  not  recoil  from  transferring 
the  idea  of  the  romantic  to  jurisprudence, 
and  who  will  take  the  trouble  to  compare  the 
corresponding  directions  followed  in  the  two 
spheres  with  one  another,  will  perhaps  not 


Cijc  Struggle  for  Hato 


find  fault  with  me  when  I  allege  that  the 
Historical  School  in  law  might  just  as  well 
have  been  called  the  romantic.  That  law 
and  the  principles  of  legal  right  come  into 
existence  or  are  formed  painlessly,  without 
trouble,  without  action,  like  the  vegetable 
creation,  is  a  really  romantic  notion,  that  is, 
a  notion  based  on  a  false  idealization  of  past 
conditions.  Stern  reality  teaches  us  the  con- 
trary, and  not  alone  that  small  part  of  that 
reality  which  we  have  before  our  eyes  our- 
selves, and  which  presents  us,  almost  every- 
where, with  the  most  strenuous  endeavors  of 
nations  in  respect  to  the  formation  of  their 
legal  relations  —  questions  of  the  gravest 
nature  which  crowd  one  upon  another;  but 
the  impression  remains  the  same,  no  matter 
what  part  of  the  past  we  contemplate. 
Savigny's  theory  can,  therefore,  appeal  to 
nothing  but  prehistoric  times  of  which  we 
have  no  information.  But  if  we  may  be 
permitted  to  indulge  in  hypothesis  in  relation 
to  them,  I  am  willing  to  oppose  to  Savigny's, 
which   represents   them  as   the  time  of  the 

16 


origin  of  tfje  Hato 


peaceable,  gentle  evolution  of  the  principles 
of  law  from  the  inner  consciousness  of  popular 
conviction,  my  own  hypothesis,  which  is 
diametrically  opposed  to  his;  and  it  will  have 
to  be  granted  to  me  that,  to  say  the  least,  it 
has  in  its  favor,  the  analogy  of  what  we  can 
see  of  the  historical  development  of  law,  and 
as  I  believe,  the  advantage,  likewise,  of 
greater  psychological  probability.  Primitive 
times!  It  was  once  the  fashion  to  deck  them 
out  in  every  beautiful  quality:  truth,  frank- 
ness, fidelity,  simplicity,  religious  faith;  and 
in  such  soil,  principles  of  law  would  certainly 
have  been  able  to  thrive  without  any  other 
force  to  assist  their  growth  than  the  power 
of  the  conviction  of  right:  they  would  not 
have  needed  the  sword,  nor  even  the  unassist- 
ed arm.  But  to-day  we  all  know  that  the 
pious  and  hoary  past  was  noted  for  qualities 
the  very  opposite  of  these,  and  the  supposition 
that  they  were  able  to  get  their  principles  of 
law  in  an  easier  manner  than  all  later  genera- 
tions can  scarcely  expect  to  be  credited  now. 
For  my  part,  I  am  convinced  that  the  labor 

17 


GHje  Struggle  for  Hato 


which  they  must  have  expended  on  their 
task,  was  one  still  more  difficult,  and  that 
even  the  simplest  principles  of  law,  such  for 
instance  as  those  named  above,  from  the 
most  ancient  Roman  law,  of  the  authority  of 
the  owner  to  claim  back  his  chattel  from  any 
one  in  whose  possession  it  was  found,  and  of 
the  creditor  to  sell  his  insolvent  debtor  into 
foreign  servitude,  had  to  be  first  fought  out 
by  the  hardest  battles,  before  they  obtained 
unquestioned  recognition.  But  be  this  as 
it  may,  we  may  leave  the  most  primitive  times 
out  of  consideration.  The  information  afford- 
ed us  by  the  remotest  history  on  the  origin  of 
law  is  sufficient.  But  this  information  is  to 
the  effect:  the  birth  of  law  like  that  of  men 
has  been  uniformly  attended  by  the  violent 
throes  of  childbirth. 

And  why  should  we  complain  that  it  is 
thus  attended?  The  very  fact  that  their 
law  does  not  fall  to  the  lot  of  nations  without 
trouble,  that  they  have  had  to  struggle,  to 
battle  and  to  bleed  for  it,  creates  between 
nations   and   their   laws   the   same   intimate 


origin  of  tfje  lato 


bond  as  is  created  between  the  mother  and 
her  child  when,  at  its  birth,  she  stakes  her 
own  life.  A  principle  of  law  won  without 
toil  is  on  a  level  with  the  children  brought 
by  the  stork:  what  the  stork  has  brought,  the 
fox  or  the  vulture  can  take  away  again.  But 
from  the  mother  who  gave  it  birth,  neither 
the  fox  nor  the  vulture  can  take  the  child 
away;  and  just  as  little  can  a  people  be  de- 
prived of  the  laws  or  institutions  which  they 
have  had  to  labor  and  to  bleed  for,  in  order 
to  obtain.  We  may  even  claim  that  the 
energy  and  love  with  which  a  people  hold  to 
and  assert  their  laws,  are  determined  by  the 
amount  of  toil  and  effort  which  it  cost  them 
to  obtain  them.  Not  mere  custom,  but 
sacrifice,  forges  the  strongest  bond  between  a 
people  and  their  principles  of  legal  right;  and 
God  does  not  make  a  gift  of  what  it  needs  to 
the  nation  He  wishes  well,  nor  does  He  make 
the  labor  necessary  to  its  acquisition  easy,  but 
difficult.  In  this  sense,  I  do  not  hesitate  to  say : 
The  struggle  needed  by  laws  to  fight  their  way 
into  existence  is  not  a  curse,  but  a  blessing. 

19 


CHAPTER  II 
THE  LIFE  OF  THE  LAW  A  STRUGGLE 

NOW  turn  to  the  real  subject  of  my 
essay  —  the  struggle  for  concrete 
law.  This  struggle  is  provoked  by 
the  violation  or  the  withholding  of 
legal  rights.  Since  no  legal  right,  be  it  the 
right  of  an  individual  or  of  a  nation,  is  guarded 
against  this  danger,  it  follows  that  this  struggle 
may  be  repeated  in  every  sphere  of  the  law  — 
in  the  valleys  of  private  law,  as  well  as  on  the 
heights  of  public  and  international  law. 
War,  sedition,  revolution,  so-called  lynch- 
law,  the  club-law,  and  feudal  law  of  the  middle 
ages,  and  the  last  remnant  of  it  in  our  own 
times,  the  duel;  lastly,  self-defense,  and  the 
action  at  law  —  what  are  they  all,  spite  of  the 
difference  of  the  object  striven  for  and  of  the 
thing  which  is  staked,  of  the  form  and  dimen- 
sions of  the  struggle  —  what  but  forms  and 

21 


Wqz  Struggle  for  Xato 


scenes  of  the  one  same  drama,  the  struggle 
for  rights,  the  struggle  for  the  principles  of 
law?  If  now,  of  all  these  forms,  I  choose  the 
least  violent,  the  legal  struggle  for  individual 
rights  in  the  form  of  an  action  at  law,  it  is 
not  because  it  has  for  jurists  a  higher  inter- 
est than  any  other,  but  because,  in  a  trial  at 
law,  the  real  nature  of  the  case  is  most  sub- 
ject to  the  danger  of  being  ignored  both  by 
jurists  and  the  laity.  In  all  other  instances 
this  real  nature  of  the  case  appears  in  all  its 
clearness.  That  in  all  other  instances  there 
is  question  of  wealth  or  goods  which  warrant 
and  repay  great  risk,  even  the  dullest  mind 
understands,  and  no  one  will,  in  such  instances, 
raise  the  question:  Why  fight;  why  not  rather 
yield?  The  magnificence  of  the  sight  of  the 
highest  display  of  human  strength  and  sacri- 
fice irresistibly  carries  all  of  us  along  with  it 
and  lifts  us  to  the  height  of  ideal  judgment. 
But,  in  the  struggle  for  individual  private 
rights,  just  mentioned,  the  case  is  very  differ- 
ent. The  relative  smallness  of  the  interests 
with  which  it  is  concerned  —  uniformly  the 

22 


Cfje  Htfe  of  tfje  Hato  a  ^truggle 

question  of  mine  and  thine,  the  dull  prosiness 
which  uniformly  attaches  to  this  question  — 
makes  of  this  struggle,  it  would  seem,  simply  a 
matter  of  cold  calculation  and  sober  contem- 
plation; and  the  forms  in  which  it  moves  (the 
mechanical  routine  of  litigation,  with  the  ex- 
clusion of  all  free,  individual  action  and  of  the 
claimant  himself)  are  ill  calculated  to  weaken 
the  unfavorable  impression.  However,  even 
in  the  case  of  the  action  at  law,  there  was  a 
time  when  the  parties  to  the  action  themselves 
were  called  on  to  enter  the  lists,  and  when  the 
true  meaning  of  the  struggle  was  thus  made 
to  appear.  While  the  sword  still  decided  the 
controversy  concerning  mine  and  thine,  when 
the  medieval  knight  sent  the  challenge  to  his 
opponent,  even  the  non-participant  may  have 
been  forced  to  surmise  that,  in  the  struggle, 
there  was  question  not  only  of  the  value  of 
the  thing,  of  averting  a  pecuniary  loss,  but 
that  the  person,  in  the  thing,  defended  him- 
self, his  rights  and  his  honor. 

But  we  shall  not  need  to  conjure  up  a  con- 
dition of  things  long  past  and  vanished  to 

23 


Cfce  Struggle  for  Hato 


discover  from  it  the  meaning  of  that  which, 
even  if  different  in  form,  is  in  essence  the 
same  to-day.  A  glance  at  the  phenomena  of 
our  actual  life  and  psychological  self-obser- 
vation will  perform  the  same  service  for  us. 

Whenever  a  person's  legal  right  is  violated, 
he  is  placed  face  to  face  with  the  question, 
whether  he  will  assert  his  right,  resist  his 
opponent  —  that  is,  engage  in  a  struggle;  or 
whether,  in  order  to  avoid  this,  he  will  leave 
right  in  the  lurch.  The  decision  of  this 
question  rests  entirely  with  himself.  What- 
ever his  answer  to  the  question  may  be,  some 
sacrifice  accompanies  it  in  both  cases.  In  the 
one  case,  the  law  is  sacrificed  to  peace;  in 
the  other,  peace  is  sacrificed  to  the  law. 
Hence,  the  question  seems  to  formulate  itself 
thus:  Which  sacrifice,  according  to  the  indi- 
vidual circumstances  of  the  case  and  of  the 
person,  is  the  more  bearable?  The  rich  man 
will,  for  the  sake  of  peace,  sacrifice  the  amount 
in  controversy,  which  to  him  is  insignificant; 
and  the  poor  man,  to  whom  this  same  amount 
is  comparatively  great,  will  sacrifice  his  peace 

24 


Cfce  Hife  of  tfje  Hato  a  Struggle 

for  its  sake.  Thus  would  the  question  of 
the  struggle  for  the  principles  of  law  reduce 
itself  to  a  simple  problem  in  arithmetic,  in 
which  advantage  and  disadvantage  are 
weighed  one  against  the  other,  by  each  side, 
and  the  decision  thus  reached. 

But  that  this  is  really  by  no  means  the 
case,  every  one  knows.  Daily  experience 
shows  us  cases  at  law  in  which  the  value  of 
the  object  in  controversy  is  out  of  all  propor- 
tion to  the  prospective  expenditure  of  trouble, 
excitement,  and  money.  No  one  who  has 
dropped  a  dollar  into  a  stream  will  give  two 
to  get  it  back  again.  For  him,  indeed,  the 
question,  how  much  he  will  expend  upon  its 
recovery,  is  a  simple  problem  in  arithmetic. 
But  why  does  he  not  go  through  the  same 
process  of  calculation  when  he  contemplates 
a  suit  at  law?  Do  not  say  that  he  calculates 
on  winning  it,  and  that  the  costs  of  the  suit 
will  fall  upon  his  opponent.  Every  lawyer 
knows  that  the  sure  prospect  of  having  to  pay 
dearly  for  victory  does  not  keep  many  per- 
sons from  suing.     How  frequently  it  happens 

25 


Wtt  Struggle  for  Hato 


that  the  counselor  who  exposes  to  a  client 
the  badness  of  his  case  and  dissuades  him 
from  suing  receives  for  answer:  Bring  suit, 
cost  what  it  may! 

How  explain  this  mode  of  action  which, 
from  the  standpoint  of  a  rational  estimation  of 
material  interests,  is  simply  senseless? 

The  answer  usually  given  to  this  question 
is  well  known.  It  is,  we  are  told,  the  miser- 
able mania  for  litigation,  the  pure  love  of 
wrangling,  the  irresistible  desire  to  inflict 
pain  on  one's  opponent,  even  when  it  is 
certain  that  one  will  have  to  pay  for  it  more 
heavily  than  one's  opponent. 

Let  us  drop  the  consideration  of  the  contro- 
versy between  two  private  persons,  and  in 
their  place  put  two  nations.  The  one  nation, 
let  us  suppose,  has,  contrary  to  law,  taken 
from  the  other  a  square  mile  of  barren,  worth- 
less land.  Shall  the  latter  go  to  war?  Let 
us  examine  the  question  from  precisely  the 
same  standpoint  from  which  the  theory  of 
the  mania  for  litigation  judges  it,  in  the  case 
of  the  peasant  from  whose  land  a  neighbor  has 

26 


(Eije  Hife  of  tfje  Hato  a  Struggle 

ploughed  away  a  few  feet,  or  into  whose 
meadow  he  has  thrown  a  few  stones.  What 
signifies  a  square  mile  of  barren  land  com- 
pared with  a  war  which  costs  the  lives  of 
thousands,  brings  sorrow  and  misery  into 
the  palace  and  the  hut,  eats  up  millions  and 
millions  of  the  treasure  of  the  state,  and 
possibly  imperils  its  existence?  What  folly 
to  make  such  a  sacrifice  for  such  an  end! 

Such  would  have  to  be  our  judgment,  if 
the  peasant  and  the  nation  were  measured 
with  the  same  measure.  Yet  no  one  would 
wish  to  give  to  the  nation  the  same  advice  as 
to  the  peasant.  Every  one  feels  that  a  nation 
which  looked  upon  such  a  violation  of  law  in 
silence  would  have  signed  its  own  death 
sentence.  From  the  nation  which  allowed 
itself  to  be  deprived  of  one  square  mile  of 
territory  by  its  neighbor,  unpunished,  the 
rest  also  would  be  taken,  until  nothing  re- 
mained to  it  to  call  its  own,  and  it  had  ceased 
to  exist  as  a  state;  and  such  a  nation  would 
deserve  no  better  fate. 

But  if  a   nation   should  have   recourse  to 

27 


Htt)t  Struggle  for  Hato 


arms,  for  the  sake  of  a  square  mile  of  terri- 
tory, without  inquiring  what  its  value,  why 
not  also  the  peasant  for  the  sake  of  his  strip 
of  land?  Or  must  we  dismiss  him  with  the 
decree:  quod  licet  Jovi,  non  licet  bovi.  The 
nation  does  not  fight  for  the  square  mile  of 
territory,  but  for  itself,  for  its  honor  and 
independence;  and  so  in  those  suits  at  law 
in  which  the  disproportion  mentioned  above 
exists  between  the  value  of  the  object  in  con- 
troversy and  the  prospective  cost  and  other 
sacrifices,  there  is  question  not  of  the  insig- 
nificant object  in  controversy,  but  of  an  ideal 
end:  the  person's  assertion  of  himself  and  of 
his  feeling  of  right.  In  respect  to  this  end, 
the  person  whose  rights  have  been  invaded 
no  longer  weighs  all  the  sacrifices  and  incon- 
veniences which  the  suit  at  law  draws  after 
it  —  the  end  in  his  eyes  is  compensation  for 
the  means.  It  is  not  a  mere  money-interest 
which  urges  the  person  whose  rights  have  been 
infringed  to  institute  legal  proceedings,  but 
moral  pain  at  the  wrong  which  has  been 
endured.     He  is  not  concerned  simply  with 

28 


flTfje  Htfe  of  tfje  Hato  a  Struggle 

recovering  the  object  —  he  may,  perhaps, 
as  frequently  happens,  to  prove  the  real 
motive  in  suing,  have  devoted  it  from  the 
first  to  a  charitable  institution  —  but  with 
forcing  a  recognition  of  his  rights.  An  inner 
voice  tells  him  that  he  should  not  retreat, 
that  it  is  not  the  worthless  object  that  is  at 
stake  but  his  own  personality,  his  feeling  of 
legal  right,  his  self-respect  —  in  short,  the 
suit  at  law  ceases  to  appear  to  him  in  the 
guise  of  a  mere  question  of  interest  and  be- 
comes a  question  of  character. 

But  experience  teaches  us  none  the  less  that 
many  others  in  the  same  situation  come  to 
the  very  opposite  decision  —  they  like  peace 
better  than  a  legal  right  asserted  at  the  cost 
of  trouble  and  anxiety.  What  kind  of  a 
judgment  must  we  pass  on  this?  Shall  we 
say  simply :  That  is  a  matter  of  individual  taste 
and  temperament;  one  loves  contention  more, 
and  the  other  peace;  from  the  standpoint  of 
law  both  conclusions  are  to  be  equally  re- 
spected; for  the  law  leaves  to  every  one  who 
has  a  legal  right,  the  choice  of  asserting  his 

29 


QTfje  Struggle  for  Hato 


right  or  of  surrendering  it.  I  hold  this  view, 
which  is  to  be  met  with  not  unfrequently  in 
life,  to  be  reprehensible  in  the  highest  degree, 
and  in  conflict  with  the  very  essence  of  law. 
If  it  were  possible  that  this  view  should 
become  general,  all  would  be  over  with  the 
law  itself;  since  whereas  the  law,  to  exist, 
demands  that  there  should  be  always  a  manly 
resistance  made  to  wrong,  those  who  advo- 
cate this  view  preach  that  the  law  should 
flee  like  a  coward  before  wrong.  To  this 
view  I  oppose  the  principle:  Resistance  to 
injustice,  the  resistance  to  wrong  in  the 
domain  of  law,  is  a  duty  of  all  who  have  legal 
rights,  to  themselves  —  for  it  is  a  command- 
ment of  moral  self-preservation  —  a  duty  to 
the  commonwealth; — for  this  resistance  must, 
in  order  that  the  law  may  assert  itself,  be 
universal.  I  have  thus  laid  down  the  prin- 
ciple which  it  is  the  purpose  of  the  sequel  to 
elaborate. 


30 


CHAPTER   III 

THE  STRUGGLE  FOR  HIS  RIGHTS  A  DUTY  OF 

THE  PERSON  WHOSE  RIGHTS  HAVE  BEEN 

VIOLATED,  TO  HIMSELF 

HE  struggle  for  his  right  is  a  duty 
of  the  person  whose  rights  have 
been  violated,  to  himself. 

The  preservation  of  existence  is 
the  highest  law  of  the  whole  living  creation. 
It  manifests  itself  in  every  creature  in  the 
instinct  of  self-preservation.  Now  man  is 
not  concerned  only  with  his  physical  life  but 
with  his  moral  existence.  But  the  condition 
of  this  moral  existence  is  right,  in  the  law. 
In  the  law,  man  possesses  and  defends  the 
moral  condition  of  his  existence  —  without 
law  he  sinks  to  the  level  of  the  beast,1  just  as 
the  Romans  very  logically,  from  the  stand- 

1  In  the  novel,  Michel  Kohlhaas,  by  Heinrich  von  Kleist,  to  which 
I  shall  return  again,  the  writer  makes  his  hero  say:  "Better  be  a  dog, 
if  I  am  to  be  trodden  under  foot,  than  a  man." 


31 


QTfje  Struggle  for  Hato 


point  of  abstract  law,  placed  slaves  on  a  level 
with  beasts.  The  assertion  of  one's  legal 
rights  is,  therefore,  a  duty  of  moral  self- 
preservation  —  the  total  surrender  of  those 
rights,  now  impossible,  but  once  possible,  is 
moral  suicide.  But  the  law  is  only  the  ag- 
gregate of  its  separate  parts,  each  of  which 
embodies  a  peculiar  moral  condition  of  exist- 
ence: property  as  well  as  marriage,  contracts 
as  well  as  reputation.  A  renunciation  of 
one  of  them  is,  therefore,  legally  just  as  im- 
possible as  the  renunciation  of  the  entire  law. 
But  it  certainly  is  possible  that  a  person 
should  attack  one  of  these  conditions;  and  it 
is  the  duty  of  the  person  attacked  to  repel 
the  attack :  for  it  is  not  sufficient  to  place  these 
conditions  of  existence  under  the  protection 
of  law,  represented  by  mere  abstract  prin- 
ciples; they  must  be  asserted  in  the  concrete 
by  the  individual;  and  the  incentive  to  this 
assertion  of  them  is  furnished  when  one 
arbitrarily  dares  to  attack  them. 

But   not   all   legal   wrong   is   arbitrariness, 
that  is  a  revolt  against  the  idea  of  law.     The 

32 


Struggle  for  &igfjtsi  a  $eröonal  JButp 

possessor  of  my  chattel  who  thinks  he  owns 
it  does  not  assail  my  person  in  denying  the 
idea  of  property;  rather  does  he  appeal  to 
it  in  his  own  interest.  The  question  be- 
tween us  turns  on  this  —  which  of  us  is  the 
owner?  But  the  thief  and  the  robber  place 
themselves  outside  the  legal  domain  of  prop- 
erty. In  my  property  they  deny  both  the 
idea  of  property,  and,  at  the  same  time,  an 
essential  condition  of  the  existence  of  my 
person.  If  we  suppose  their  mode  of  action 
to  become  general,  to  become  a  maxim  of  the 
law,  property  is  denied  both  in  theory  and  in 
practice.  Hence  their  act  embodies  an  at- 
tack, not  only  on  my  chattel,  but  at  the  same 
time  on  my  person;  and  if  it  be  my  duty  to 
defend  my  person,  it  is  my  duty  here  also; 
and  nothing  but  the  conflict  of  this  duty  with 
the  higher  duty  of  the  preservation  of  my 
life,  as  happens  when  the  robber  puts  before 
me  the  alternative  of  my  money  or  my  life, 
can  justify  the  abandonment  of  my  property. 
But  leaving  this  case  out  of  consideration, 
it  is  my  duty  to  oppose  this  disregard  of  law 

33 


Cfje  Struggle  for  Hato 


in  my  person  with  all  the  means  at  my  com- 
mand. By  tolerating  that  disregard  of  law, 
I  consent  to  support  injustice  for  a  single 
moment  in  my  life.  But  to  do  this,  no  one 
should  lend  a  hand. 

Towards  the  bona  fide  possessor  of  my 
chattel,  I  stand  in  a  very  different  situation. 
Here  the  question  is  what  I  have  to  do.  It  is 
not  a  question  of  my  feeling  of  legal  right,  of 
my  character,  of  my  personality,  but  a  pure 
question  of  interest;  for  I  have  nothing  here 
at  stake  but  the  value  of  my  chattel,  and 
here,  therefore,  I  am  entirely  warranted  in 
weighing  the  gain  and  stake,  and  the  possibil- 
ity of  a  doubtful  issue,  one  against  the  other, 
and  to  come  to  a  decision  accordingly:  to 
sue,  abstain  from  suing,  or  arbitrate.1  Arbi- 
tration or  settlement  is  the  point  of  meeting 
of  such  a  calculation  of  probabilities,   made 


1  The  above  passage  should  have  guarded  me  from  the  supposition 
that  I  preached  the  battle  for  one's  legal  rights  without  inquiring 
further  concerning  motives  and  circumstances,  and  that  I  consid- 
ered the  surrender  of  a  questionable  right  as  entirely  unjustifiable. 
Only  where  the  person  is  trampled  under  foot  in  his  rights  have  I 
declared  the  vindication  of  one's  rights  to  be  a  vindication  of  one's 
self,  and  thus  a  matter  of  honor  and  a  social  duty.     When  this  differ- 

34 


Struggle  for  &tgf)tö  a  $eröonal  Butp 

by  each  side,  and,  with  the  premises  which 
I  here  suppose,  it  is  the  best  means  of  closing 
the  controversy.  But  if  a  settlement  is  often 
so  difficult  to  effect;  if,  as  not  infrequently 
happens,  both  parties  from  the  first  decline 
all  negotiations  tending  to  a  settlement,  the 
reason  is  not  simply  that  the  calculations  of 
probabilities  by  the  two  parties  diverge  too 
much  from  each  other  to  be  able  to  meet,  but 
because  each  of  the  parties  to  the  controversy 
supposes  the  other  to  be  consciously  wrong, 
moved  by  an  evil  intent.  Thus  the  question 
assumes,  even  when  agitated  from  the  stand- 
point of  a  suit  at  law,  under  the  form  of  an 
objective  injustice  (reivindicatio),  psychologi- 
cally, for  the  party,  the  very  same  shape  as 
in  the  case  above  —  the  shape  of  a  conscious 
violation  of  one's  right  or  of  law;  and  the 
stubbornness  with  which  the  individual  here 


ence,  on  which  I  have  laid  so  much  stress,  is  overlooked,  and  the 
absurd  view  attributed  to  me,  that  wrangling  and  contention  have 
something  of  the  beautiful  in  them,  and  that  litigiousness  is  a  virtue, 
I  can  find  no  explanation  of  the  fact,  except  by  assuming  an  evil 
intention  to  set  up  a  view  which  is  not  liked  in  order  to  refute  it,  or 
a  negligence  in  reading  which  forgets  at  the  end  of  the  book  what 
was  read  in  the  beginning. 

35 


GTfje  Struggle  for  Hato 


defends  his  rights   is   based  precisely  on  the 
same  reasons,   and  is  as  morally  justifiable, 
as  when  he  defends  them  against  the  robber. 
To  wish,  in  such  a  case,  to  deter  the  party 
from  defending  his  right,  in  a  suit  at  law,  by 
pointing  out  to  him  the  expense  and  other 
consequences  of  the  same  nature  attending 
it  —  the  uncertainty  of  the  issue,  for  instance 
—  is  a  psychological  blunder;  for  the  question 
is,  to  such  a  party,  not  a  question  of  interest, 
but  of  his  sentiment  of  justice  or  of  right. 
The  only  hope  we  can  cherish  here  is  to  cause 
the  supposition  of  an  evil  intention  to  dis- 
appear, which  caused  the  party  to  act;  and 
this  done,  resistance  is  overcome;  the  party 
may  be  induced  to  look  at  the  question  in 
the  light  of  interest,  and  a  settlement  or  com- 
promise   become    possible.     What    stubborn 
resistance  the  prepossession  and  prejudice  of 
the  party  frequently  oppose  to  all  such  at- 
tempts   is    only    too   well    known    to   every 
practical  jurist;   and   I   believe  that   I   shall 
meet  with  no  contradiction  from  that  quarter 
when  I  assert   that   this  inaccessibleness  to 

36 


Struggle  for  &tgfjtö  a  personal  Burp 


minds,  this  tenacious  distrust,  is  a  thing  not 
purely  individual,  determined  by  the  acci- 
dental character  of  the  person,  but  that  it  is 
decided  by  the  general  differences  of  educa- 
tion and  calling.  This  distrust  is  most  insur- 
mountable in  the  case  of  the  peasant.  The 
litigiousness  of  which  he  is  accused  is  noth- 
ing but  the  product  of  two  factors  especially 
peculiar  to  him  —  a  strong  sense  of  property, 
not  to  say  avarice,  and  mistrust.  No  one 
so  well  understands  his  interests,  and  holds  as 
firmly  to  what  he  has,  as  the  peasant;  and  yet 
no  one  so  readily  sacrifices  his  fortune  to  a 
suit  at  law.  This  is  apparently  a  contradic- 
tion; but,  in  reality,  it  is  entirely  explainable. 
Precisely  his  largely  developed  sense  of  prop- 
erty makes  an  injury  to  his  property  all  the 
more  sensitively  felt,  and  the  reaction,  there- 
fore, all  the  more  violent.  The  litigiousness 
of  the  peasant  is  nothing  but  the  aberration  of 
the  sense  of  property,  produced  by  mistrust,  an 
aberration  which,  like  the  analogous  phenome- 
non in  love,  jealousy,  aims  its  dart  at  itself, 
inasmuch  as  it  destroys  what  it  seeks  to  save. 

37 


Efje  Struggle  for  Hato 


The  old  Roman  law  affords  an  interesting 
confirmation  of  what  I  have  just  now  said. 
This  mistrust  of  the  peasant,  which,  in  every 
conflict  of  law,  supposes  an  evil  intention  in 
one's  opponent,  finds  expression  in  that  law 
in  the  form  of  legal  principles.  Everywhere, 
even  where  there  is  question  of  a  conflict  of 
law  in  which  each  of  the  contending  parties 
may  be  in  good  faith,  the  defeated  party  has 
to  pay  a  penalty  for  his  resistance.  The 
simple  restoration  to  a  person  of  his  rights  is 
no  satisfaction  to  the  outraged  feeling  of  right. 
The  defeated  party,  whether  innocent  or 
guilty,  had  to  make  satisfaction  for  having 
opposed  the  law.1  If  our  peasants  to-day 
had  the  making  of  the  law,  it  would,  we  may 
conjecture,  be  very  like  that  of  their  old 
Roman  predecessors.  But  even  in  Rome, 
this  mistrust  in  law  was  in  principle  overcome 
by  civilization,  inasmuch  as  two  sorts  of  in- 
justice were  distinguished,  the  guilty  and  the 
innocent,  or  the  subjective  and  objective  (in 
the  language  of  Hegel,  the  ingenuous  wrong). 

1  I  shall  return  to  this  later. 

38 


Struggle  for  &tgfjtö  a  pergonal  JSutp 

This  distinction  between  objective  and  sub- 
jective injustice  is,  from  a  legislative  and 
scientific  point  of  view,  a  very  important  one. 
It  expresses  the  manner  in  which  the  law  looks 
upon  the  matter,  and  it  justifies  the  conse- 
quences which  the  violation  of  law  draws  after 
it.  But  it  does  not  at  all  decide  how  the 
individual  shall  look  upon  it;  how  his  feeling 
of  legal  right  will  be  excited  by  an  injustice 
done  him,  a  feeling  which  does  not  pulsate 
in  accordance  with  the  abstract  notions  of 
the  system.  The  circumstances  of  the  case 
may  be  such  that  the  person  whose  rights 
have  been  violated  may  have  every  reason, 
in  a  conflict  about  rights,  which,  according 
to  the  law,  falls  under  the  head  of  an  objective 
violation  of  law,  to  proceed  on  the  assumption 
of  an  evil  intent,  of  conscious  injustice  on  the 
part  of  his  opponent;  and  this  judgment  of 
his,  will  rightly  decide  what  his  course  towards 
his  opponent  should  be.  The  fact  that  the 
law  gives  me  the  very  same  condictio  ex  mutuo 
against  the  heir  of  my  debtor  who  knows 
nothing  of  the  debt,  and  makes  the  payment 

39 


GTfje  Struggle  for  Hato 


of  it  dependent  on  the  proof,  as  against  the 
debtor  himself,  who  shamelessly  denies  the 
loan  made  him,  or  refuses  to  pay  it  without 
reason,  cannot  keep  me  from  looking  at  the 
mode  of  action  of  the  two  in  an  entirely  dif- 
ferent light,  and  to  frame  my  own  action 
accordingly.  The  debtor  himself  is  to  me  on 
the  same  footing  as  the  thief.  He  knowingly 
tries  to  deprive  me  of  what  is  mine.  It  is 
the  rising  up  of  caprice  against  law,  only  it  is 
in  a  situation  to  clothe  itself  in  a  legal  garb. 
The  heir  of  the  debtor,  on  the  other  hand,  is 
like  the  bona  fide  possessor  of  what  belongs 
to  me.  He  does  not  deny  the  principle  that 
the  debtor  must  pay,  but  only  the  assertion 
that  he  is  a  debtor  himself,  and  all  that  I 
have  said  above  of  the  bona  fide  possessor 
applies  to  him.  With  him  I  may  settle  or 
compromise.  I  may,  in  his  case,  desist  en- 
tirely from  the  institution  of  a  suit;  but,  as 
against  the  debtor,  I  should  and  I  must  follow 
up  my  right,  cost  what  it  may.  Not  to  do 
this  would  be  to  admit  the  debtor  to  be  right, 
— nay,  more,  to  abandon  the  right. 

40 


Struggle  for  &igfjtö  a  ^cröonal  JSutp 

I  suppose  that  it  will  be  objected  to  what 
I  have  thus  far  said:  what  do  the  people  know 
of  the  right  of  property,  of  contract  as  a 
moral  condition  of  the  existence  of  the  person? 
Know?  They  may  know  nothing  about  it, 
but  whether  they  do  not  feel  it  is  another 
question;  and  I  hope  that  I  shall  be  able  to 
show  that  such  is  the  case.  What  do  the 
people  know  of  the  kidneys,  lungs,  liver,  as 
conditions  of  their  physical  life?  But  every 
one  feels  the  stitch  in  the  lungs,  or  a  pain  in 
the  kidneys  or  liver,  and  understands  the 
warning  which  it  conveys  to  him.  Physical 
pain  is  the  signal  of  a  disturbance  in  the 
organism,  of  the  presence  of  an  influence 
inimical  to  it.  It  opens  our  eyes  to  an  im- 
pending danger,  and  compels  us,  by  the  pain 
which  it  causes,  to  oppose  it  in  time.  The 
very  same  is  true  of  the  moral  pain  caused  us 
by  intentional  injustice,  by  arbitrariness. 
Varying  in  intensity,  just  like  the  physical, 
according  to  the  difference  of  subjective 
sensitiveness,  of  the  form  and  object  of  the 
injustice  (on  which  more  anon),  it  manifests 

41 


Gtfje  Struggle  for  Hato 


itself  also  in  every  individual  not  entirely 
blunted  to  it,  i.e.,  in  every  individual  who 
has  not  grown  accustomed  to  positive  law- 
lessness, as  moral  pain,  and  thus  summons 
him  to  fight  against  the  cause  which  produces 
it  —  not  so  much  to  put  an  end  to  the  feeling 
of  pain  as  to  preserve  the  health,  which  is 
threatened  by  the  inactive  bearing  of  it.  It 
is  a  reminder  of  the  duty  of  moral  self-preser- 
vation, such  as  physical  pain  is  in  respect  to 
physical  self-preservation. 

Let  us  take  the  most  undoubted  case,  an 
attack  on  one's  honor,  and  the  profession  in 
which  it  is  most  sensitively  developed  —  the 
military  profession.  An  officer  who  has  pa- 
tiently borne  an  insult  which  involves  his 
honor  is  no  longer  an  officer.  Why?  The 
vindication  of  his  honor  is  every  man's  duty. 
Why  then  does  the  military  gentleman  attach 
more  importance  than  any  other  to  the  ful- 
fillment of  this  duty?  Because  he  has  the 
right  feeling,  that  the  courageous  vindication 
of  one's  personality  is,  for  him,  more,  perhaps, 
than  for  a  person  of  any  other  class,  an  indis- 

42 


fetruggle  for  &tgf)tö  a  pergonal  Butp 

pensable  condition  of  his  order,  which,  in  its 
very  nature,  should  be  the  incorporation  of 
personal  courage,  and  which  cannot  endure 
the  cowardice  of  its  members  without  sacri- 
ficing itself.  With  the  officer,  let  us  now 
compare  the  peasant,  who  defends  his  prop- 
erty with  the  greatest  stubbornness,  but 
evinces  a  surprising  indifference  as  to  his 
honor.  Why?  Because  he,  too,  has  a  cor- 
rect feeling  of  the  peculiar  conditions  of  his 
existence.  He  is  not  called  upon  to  give 
proof  of  his  courage,  but  to  work.  His  prop- 
erty is  only  the  visible  form  which  his  labor 
in  the  past  has  taken.  The  lazy  peasant, 
who  takes  no  care  of  his  land  or  who  dissipates 
his  little  fortune,  is  as  much  despised  by  other 
peasants  as  is  the  officer  who  lightly  values 
his  honor,  by  his  colleagues.  But  one  peas- 
ant will  never  reproach  another  because  he 
has  not  fought  a  duel,  or  instituted  a  suit  to 
avenge  an  insult;  nor  one  officer  another, 
because  he  has  mismanaged  his  property. 
The  piece  of  land  which  he  tills,  the  cattle 
which  he  raises,  are  to  the  peasant  the  basis 

43 


Cfje  Struggle  for  Hato 


of  his  entire  existence;  and  the  angry  lawsuit 
which  he  institutes  against  the  neighbor  who 
has  deprived  him  of  a  few  feet  of  land,  or 
against  the  trader  who  refuses  to  pay  him  for 
the  oxen  which  he  has  sold  him,  is  only  his 
way  of  doing  what  the  officer  does  with  his 
sword  —  of  battling  for  his  rights.  Both  sacri- 
fice themselves  without  reserve.  They  leave 
the  consequences  of  their  action  entirely  out 
of  consideration.  And  this  they  must  do, 
for,  in  doing  it,  they  are  only  obeying  the 
peculiar  law  of  their  moral  self-preservation. 
Put  them  in  the  jury-box  —  submit  to  a  jury 
of  officers  the  case  of  an  injury  to  property, 
and  to  a  jury  of  peasants  a  question  of  honor 
—  and  see  how  different  their  verdicts!  It 
is  well  known  that  there  are  no  severer  judges, 
in  the  matter  of  injuries  to  property,  than 
the  peasantry.  And  although  I  cannot  here 
speak  from  experience,  I  have  no  manner  of 
doubt  that  if  a  peasant  were  to  bring  an 
action  for  damages  for  assault  and  battery, 
for  instance,  it  would  be  found  much  easier 
to  induce  him  to  arbitrate  than  if  his  action 

44 


Struggle  for  Bigfjtö  a  $eröonal  Burp 


were  for  an  injury  to  property.  The  old 
Roman  peasant  was  satisfied  with  twenty- 
five  as  for  a  slap  on  the  face;  and  when  a 
person  put  out  one  of  his  eyes,  he  was  willing 
to  talk  the  matter  over  and  to  arbitrate, 
instead  of  putting  out  one  of  his  opponent's 
eyes,  as  he  was  authorized  to  do.  But  he 
demanded  that  the  law  should  empower  him 
to  hold  the  thief  caught  in  the  act,  as  a  slave, 
and,  in  case  of  resistance,  to  slay  him;  and 
the  law  permitted  him  to  do  so.  In  the  former 
case,  only  his  honor,  his  body,  was  at  stake; 
in  the  latter,  his  property. 

As  a  third  illustration,  let  us  take  the  case 
of  the  merchant.  His  credit  is  to  him  what 
honor  is  to  the  officer,  and  property  to  the 
peasant.  The  maintenance  of  his  credit  is, 
for  him,  a  vital  question;  and  the  man  who 
charges  him  with  negligence  in  meeting  his 
obligations  deals  him  a  heavier  blow  than  the 
one  who  attacks  his  person  or  robs  him.  It 
is  in  keeping  with  this  peculiar  position  of  the 
merchant  that  recent  laws  tend  more  and 
more  to  restrict  the  crime  of  negligent  and 

45 


Cfte  Struggle  for  Hato 


fraudulent   bankruptcy,    to   him   and   others 
like  him. 

By  what  I  have  just  said  I  have  not  intended 
simply  to  show  that  the  irritability  of  the 
feeling  of  legal  right  varies  according  to  class 
and  calling,  inasmuch  as  that  feeling  measures 
the  wounding  character  of  the  injury  in 
accordance  with  the  interest  which  the  class, 
as  a  class,  has  not  to  endure  it.  The  proof 
of  this  fact  serves  only  to  place  in  its  true  light 
the  truth  of  a  much  higher  order,  that  every 
man  possessed  of  a  legal  right  defends  the 
moral  conditions  of  his  existence  when  he 
defends  his  legal  right.  For  the  fact  that 
the  feeling  of  legal  right  shows  itself  most 
irritable,  in  the  case  of  the  three  classes 
named,  in  the  points  in  which  we  have  recog- 
nized the  conditions  of  existence  of  these 
classes  peculiarly  to  reside,  proves  that  the 
reaction  of  the  feeling  of  legal  right  is  not  like 
that  of  feelings  generally,  determined  only 
by  the  temperament  and  character  of  the 
individual,  but  that  it  is  determined  likewise 
by  a  social  cause;  viz.,  the  feeling  of  the  indis- 

46 


Struggle  for  &tgf)tö  a  $eröonal  Butp 


pensableness  of  this  very  branch  of  the  law 
to  the  vital  end  of  the  particular  class.  The 
degree  of  energy  with  which  the  feeling  of 
legal  right  reacts  against  an  infringement  of 
legal  right  is,  in  my  eyes,  a  sure  measure  of 
the  importance  which  individuals,  a  class  or 
people,  really  attach,  both  to  the  law  in 
general  and  to  a  special  branch  of  it,  for  them- 
selves and  their  special  aim  in  life.  This 
principle  I  hold  to  be  universally  true,  true 
in  the  case  of  public  as  well  as  of  private  law. 
The  same  irritability  which  the  different 
classes  manifest  in  respect  to  a  violation  of 
all  those  legal  provisions  which,  in  a  special 
manner,  constitute  the  basis  of  their  exist- 
ence, we  find  also  in  the  case  of  states,  in  re- 
spect to  those  institutions  in  which  the  pecu- 
liar principle  of  their  life  seems  realized. 
The  measure  of  their  irritability,  and  of  the 
value  which  they  attach  to  these  heads  of 
the  law,  is  found  in  the  criminal  law.  The 
surprising  difference  which  prevails  in  crim- 
inal law  {Strafrecht — penal  justice),  in  re- 
spect to  severity  and  mildness,  is  accounted 

47 


GTfje  Struggle  for  Hato 


for,  in  great  part,  by  the  principle  mentioned 
above,  of  the  conditions  of  existence.  Every 
state  punishes  those  crimes  most  severely 
which  threaten  its  own  peculiar  condition  of 
existence,  while  it  allows  a  moderation  to 
prevail  in  regard  to  other  crimes  which,  not 
infrequently,  presents  a  very  striking  con- 
trast to  its  severity  as  against  the  former.  A 
theocracy  brands  blasphemy  and  idolatry  as 
crimes  deserving  of  death,  while  it  looks  upon 
a  boundary  violation  as  a  simple  misdemean- 
or. (Mosaic  law.)  The  agricultural  state, 
on  the  other  hand,  visits  the  latter  with  the 
severest  punishment,  while  it  lets  the  blas- 
phemer go  with  the  lightest  punishment. 
(Old  Roman  law.)  The  commercial  state 
punishes  most  severely  the  uttering  of  false 
coin,  the  military  state  insubordination  and 
breach  of  official  duty,  the  absolute  state  high 
treason,  the  republic  the  striving  after  regal 
power;  and  they  all  manifest  a  severity  in 
these  points  which  contrasts  greatly  with  the 
manner  in  which  they  punish  other  crimes. 
In  short,  the  reaction  of  the  feeling  of  legal 

48 


Struggle  for  &tgf)tö  a  pergonal  Butp 

right,  both  of  states  and  individuals,  is  most 
violent  when  they  feel  themselves  threatened 
in  the  conditions  of  existence  peculiar  to  them.1 
Just  as  the  peculiar  conditions  of  a  class  or 
calling  invest  certain  heads  of  the  law  with 
an  enhanced  importance,  and  thus  enhance 
the  sensitiveness  of  the  feelings  of  legal  right 
in  respect  to  a  violation  of  them,  these  same 
conditions  may  also  produce  a  weakening  of 
that  sentiment.  The  servant-class  cannot 
maintain  and  develop  the  feeling  of  honor 
among  themselves  as  do  the  other  strata  of 
society.  Their  position  brings  with  it  certain 
humiliations,  against  which  a  single  servant 
revolts  in  vain,  so  long  as  the  class  itself 
endures  them.  An  individual  with  a  sensitive 
feeling  of  honor,  in  such  a  situation,  has  no 
alternative  but  to  lower  his  claims  to  the  level 
of  those  of  his  like  or  to  give  up  the  calling. 
Only  when  such  a  way  of  feeling  becomes 
general  is  there  any  prospect  for  the  individ- 
ual, instead  of  wasting  his  strength  in  a  useless 

1  The  learned  know  that  I  have  here  only  turned  to  account  ideas, 
the  merit  of  having  recognized  and  formulated  which  belongs  to  the 
great  Montesquieu,  "Esprit  des  Lois". 

49 


Wi)t  Struggle  for  Hato 


struggle,  to  turn  it  to  account,  in  union  with 
those  who  think  as  he  does,  to  raise  the  level 
of  the  honor  of  his  class;  and  I  mean  here, 
not  simply  the  subjective  feeling  of  honor,  but 
its  objective  recognition  by  the  other  classes 
of  society  and  by  legislation.  The  history 
of  the  social  development  of  the  last  fifty 
years  shows  immense  progress  in  this  direc- 
tion. What  I  have  just  said  might  have  been 
applied  half  a  century  ago  to  most  classes. 
The  enhanced  feeling  of  honor  to  be  found  in 
them  is  only  the  result  and  the  expression  of 
the  legal  position  which  they  have  secured. 

What  I  have  said  above  of  honor  is  true 
also  of  property.  The  sensitiveness  of  the 
feeling  of  legal  right  in  relation  to  property, 
the  real  sense  of  property  —  I  mean  here  not 
the  instinct  of  acquisition,  the  hunting  after 
money  and  wealth,  but  the  manly  feeling  of 
the  owner,  as  the  model  representative  of 
whom  I  have  chosen  the  peasant,  of  the 
owner  who  defends  what  belongs  to  him,  not 
because  it  is  an  object  of  value,  but  because 
it  belongs  to  him  —  this  feeling,  this  sense  of 

50 


Struggle  for  &tgf)tö  a  pergonal  3©utp 


property,  also  may  become  enfeebled  under 
the  unhealthy  influence  of  causes  and  cir- 
cumstances. What,  we  hear  a  great  many 
ask,  has  the  thing  which  belongs  to  me,  to 
do  with  my  person,  with  me?  It  serves  me 
as  a  means  of  subsistence,  of  acquisition,  of 
enjoyment;  but  as  there  is  no  moral  duty  in- 
cumbent on  me  to  amass  a  great  deal  of  money, 
there  can  be  no  duty  incumbent  on  me  to  go 
to  law  for  a  mere  trifle,  at  a  great  expenditure 
of  time  and  money,  and  at  the  sacrifice  of  my 
rest.  The  only  motive  which  urges  me  to 
go  to  law  to  assert  my  right  to  my  property  is 
the  motive  which  determines  me  to  acquire 
it,  and  which  determines  the  disposition  I  shall 
make  of  it  —  my  interest.  Whether  I  shall 
go  to  law  to  assert  my  right  to  my  property, 
or  not,  is  simply  a  question  of  interest. 

For  my  part,  in  such  a  view,  I  can  see  only 
a  degeneration  of  the  true  sense  of  property, 
the  reason  of  which  seems  to  me  to  be  a  dis- 
placement, an  ignoring,  of  its  natural  basis. 
I  do  not  hold  wealth  and  luxury  responsible 
for  this  degeneration  —  in  neither  of  them  do 

Si 


W)t  Struggle  for  Hato 


I  discover  any  danger  to  the  feeling  of  legal 
right  of  the  people  —  but  the  love  of  gain 
grown  immoral.  The  historical  source  and 
ethical  justification  of  property  is  labor  — 
the  labor  not  of  the  hand  or  arm  alone,  but 
of  the  mind  and  of  talent;  and  I  acknowledge 
the  right,  not  only  of  the  workman  himself 
to  the  product  of  his  labor,  but  of  his  heir 
also;  that  is,  I  discover  in  the  right  of  inherit- 
ance a  necessary  consequence  of  the  principle 
of  labor;  for  I  maintain  that  the  laborer 
should  not  be  prevented  denying  himself  the 
enjoyment  of  his  property  and  leaving  it  to 
another,  whether  during  his  lifetime  or  after 
his  death.  Only  through  a  lasting  connec- 
tion with  labor  can  property  maintain  itself 
fresh  and  healthy.  Only  at  this  source  is  it 
seen,  clearly  and  transparently,  to  the  very 
bottom,  to  be  what  it  is  to  man.  The  further 
the  stream  is  removed  from  this,  its  source, 
and  winds  into  the  devious  direction  of  easy 
and  toilless  gain,  the  more  turbid  do  its  waters 
become,  until,  in  the  slime  of  speculation  on 
'Change  and  of  fraudulent  stock-jobbing,  it 

52 


Struggle  for  &tgf)t£  a  pergonal  3©utp 

loses  every  trace  of  what  it  was  in  its  origin. 
At  that  point  every  vestige  of  the  moral  idea 
of  property  has  departed,  and  there  can  be 
no  longer  question  of  the  moral  duty  of  de- 
fending it.  Here  there  can  no  longer  be  any 
understanding  of  the  meaning  of  property 
as  it  exists  in  the  breast  of  the  man  who  has 
to  earn  his  bread  in  the  sweat  of  his  brow. 
The  worst  of  all  is,  that  the  opinions  and 
habits  generated  by  such  causes  unfortunately 
gradually  extend  to  circles  in  which  they 
would  not  have  appeared  spontaneously 
without  contagious  contact.1  The  influence 
of  the  millions  won  by  stock-jobbing  extends 
even  to  the  poor  man's  hut;  and  the  same 
person  who,  in  another  environment,  would 
have  tasted,  in  his  own  experience,  the  bless- 
ings of  labor,  feels  that  same  labor,  under  the 
enervating  pressure  of  such  an  atmosphere, 
a  curse,  and  only  a  curse.  Communism 
thrives  only  in  those  quagmires  in  which  the 

1  An  interesting  proof  of  this  is  furnished  by  the  small  German 
university  cities,  supported  mainly  by  students.  The  manner  in 
which  these  think  and  act  in  the  matter  of  spending  money  is  invol- 
untarily communicated  to  the  population. 

53 


W$t  Struggle  for  Hato 


true  idea  of  property  is  lost.  At  the  source 
of  the  stream  it  is  not  to  be  found.  We 
may  verify  in  the  country,  in  a  directly  oppo- 
site sense,  this  fact  of  experience:  that  the 
manner  in  which  the  ruling  classes  look  at 
property  is  not  confined  to  the  latter,  but 
that  it  is  communicated  to  the  other  classes 
of  society.  The  person  permanently  living 
in  the  country,  who  does  not  keep  entirely 
aloof  from  the  peasantry,  will  involuntarily, 
and  even  when  not  urged  thereto  by  his 
circumstances  or  his  own  peculiar  character, 
take  up  something  of  the  peasant's  frugality 
and  sense  of  property.  The  same  average 
man,  under  otherwise  entirely  similar  cir- 
cumstances, will  be  economical  with  the 
peasant  in  the  country,  and  a  spendthrift 
with  the  millionaire  in  a  city  like  Vienna. 

But  whatever  may  be  the  cause  of  that 
weakness  of  character  which  the  love  of  ease 
induces  to  evade  the  struggle  for  legal  right, 
all  we  have  to  do  here  is  to  recognize  it  and 
to  describe  it  as  it  is.  What  is  the  practical 
philosophy  of  life  which  it  preaches  but  the 

54 


Struggle  for  &tgf)ta  a  pergonal  JButp 

policy  of  the  coward?  The  coward  who 
flees  the  battle  saves  what  others  sacrifice — 
his  life;  but  he  saves  it  at  the  cost  of  his  honor. 
Only  the  fact  that  others  make  a  stand 
protects  him  and  the  community  from  the 
consequences  which  his  mode  of  action  would 
otherwise  inevitably  draw  after  it.  If  all 
thought  as  he,  they  would  all  be  lost.  And 
precisely  the  same  is  true  of  the  cowardly 
abandonment  of  one's  legal  rights.  Innocent 
as  the  act  of  an  individual,  it  would,  if  raised 
to  the  dignity  of  a  general  principle  of  action, 
be  the  destruction  of  the  entire  law.  And 
even  under  these  circumstances,  the  appar- 
ent absence  of  danger  in  such  a  mode  of  action 
is  possible  only  because  the  struggle  of  law 
against  wrong  is,  on  the  whole,  not  affected 
by  it  any  further.  For,  indeed,  it  is  not 
individuals  alone  who  are  called  upon  to  take 
part  in  this  struggle,  but,  in  organized  states, 
the  state-power  also  takes  a  very  large  part 
in  it,  inasmuch  as  it  prosecutes  and  punishes 
all  serious  attacks  on  the  life,  liberty  or 
property  of  the  individual,  of  its  own  motion, 

55 


(Efje  Struggle  for  Hato 


thus  relieving  him  of  the  hardest  part  of  the 
work.  But  even  in  respect  to  those  viola- 
tions of  law,  the  prosecution  of  which  is  left 
entirely  to  the  individual,  care  is  taken  that 
the  struggle  may  not  be  interrupted;  for 
every  one  does  not  follow  the  policy  of  the 
coward,  and  even  the  latter  takes  his  place 
in  the  line  of  combatants,  at  least  when  the 
value  of  the  object  in  controversy  outweighs 
his  ease.  But  let  us  suppose  a  state  of  things 
in  which  the  protection  afforded  by  the  police 
power  and  by  the  criminal  law  is  wanting; 
let  us  transfer  ourselves  to  a  time  when,  as 
in  ancient  Rome,  the  pursuit  of  the  thief  and 
the  robber  was  the  affair  only  of  the  person 
injured,  and  who  does  not  see  to  what  such 
an  abandonment  of  one's  legal  rights  would 
have  led?  To  what  would  it  have  conduced 
but  to  the  encouragement  of  thieves  and  rob- 
bers? The  very  same  thing  is  true  of  the 
life  of  nations.  Here  each  nation  is  thrown 
entirely  on  its  own  resources.  No  higher 
power  relieves  it  of  the  necessity  of  asserting 
its  rights,  and  I  need  only  recall  the  example 

56 


Struggle  for  &tgf)t£  a  pergonal  ZButp 

given  above  of  the  square  mile,  to  show  what 
that  view  of  life  which  would  measure  the 
resistance  to  wrong  according  to  the  material 
value  of  the  object  in  controversy,  means  to 
the  life  of  nations.  But  a  principle  which, 
wherever  tested,  proves  itself  completely 
unthinkable,  the  dissolution  and  destruction 
of  the  law,  cannot,  even  where,  by  way  of 
exception,  its  fatal  consequences  are  para- 
lyzed by  other  circumstances,  be  called  cor- 
rect. I  shall  have  occasion  to  show  later 
what  a  disastrous  influence  such  a  principle 
exerts,  even  under  such  relatively  favorable 
circumstances. 

Let  us,  therefore,  reject  this  morality  of 
convenience  and  ease,  which  no  nation  and 
no  individual,  with  a  healthy  feeling  of  legal 
right,  has  ever  adopted.  It  is  the  sign  and 
the  product  of  a  diseased  feeling  of  legal 
right;  it  is  coarse  and  naked  materialism,  in 
the  domain  of  law.  Even  materialism  has, 
within  certain  limits,  its  raison  d'etre  in  this 
domain.  To  profit  by  one's  legal  rights,  to 
make  use  of  them  and  to  assert  them  when 

57 


Cfje  Struggle  for  Hato 


there  is  question  of  a  purely  objective  wrong, 
is  only  a  question  of  interest;  and  a  legal 
right  according  to  the  definition  which  I  have 
given  of  it  myself,1  is  nothing  but  an  interest 
protected  by  the  law.  But  in  the  presence 
of  arbitrariness  which  lifts  its  hand  against 
the  law,  this  material  consideration  loses  all 
value,  for  the  blow  which  it  aims  at  my  legal 
right,  strikes  my  person  also  when  it  strikes 
the  law. 

It  is  a  matter  of  indifference  what  the  ob- 
ject of  the  right  is.  If  mere  chance  were  to 
put  me  in  possession  of  an  object,  I  might  be 
deprived  of  it  without  any  injury  to  my 
person,  but  it  is  not  chance,  but  my  will, 
which  establishes  a  bond  between  myself  and 
it,  and  even  my  will  only  at  the  price  of  the 
past  labor  of  myself  or  of  another; —  it  is  a 
part  of  my  own  strength  and  of  my  own  past, 
or  of  the  strength  and  past  of  another,  which 
I  possess  and  assert  in  it.  In  making  it  my 
own,  I  stamped  it  with  the  mark  of  my  own 
person;  whoever  attacks  it,  attacks  me;  the 

1  "  Geist  des  röm.  R."  iii,  p.  60. 
58 


Struggle  for  ftigfjtö  a  $eröonal  ©utp 


blow  dealt  it  strikes  me,  for  I  am  present  in 
it.  Property  is  but  the  periphery  of  my 
person  extended  to  things. 

This  connection  of  the  law  with  the  person 
invests  all  rights,  no  matter  what  their  nature, 
with  that  incommensurable  value  which,  in 
opposition  to  their  purely  material  value,  I 
call  ideal  value.  From  it  springs  that  de- 
votedness  and  energy  in  the  assertion  of 
legal  right  which  I  have  described  above. 
This  ideal  conception  of  the  law  is  not  a 
privilege  of  characters  highly  endowed  by 
nature;  but  it  is  as  accessible  to  the  coarsest 
as  to  the  most  cultured,  to  the  richest  as  to 
the  poorest,  to  savage  and  to  civilized  nations; 
and,  just  here,  we  discover  so  clearly  how 
firmly  rooted  in  the  innermost  nature  of  the 
law  this  idealism  is  —  it  is  nothing  but  the 
healthfulness  of  the  feeling  of  legal  right. 
The  law  which,  on  the  one  hand,  seems  to 
relegate  man  exclusively  to  the  low  region  of 
egotism  and  interest,  lifts  him,  on  the  other 
hand,  to  an  ideal  height,  in  which  he  forgets 
all   policy,    all   calculation,    that   measure  of 

59 


TOje  Struggle  for  Hato 


interest  which  he  had  learned  to  apply  every- 
where, in  order  to  sacrifice  himself  purely 
and  simply  in  the  defense  of  an  idea.  Law 
which,  in  the  former  region,  is  prose,  becomes, 
in  the  struggle  for  law,  poetry  in  the  latter; 
for  the  struggle  for  law,  the  battle  for  one's 
legal  rights,  is  the  poetry  of  character. 

What  is  it,  then,  that  works  this  wonder? 
Not  knowledge,  not  education,  but  simply 
the  feeling  of  pain.  Pain  is  the  cry  of  dis- 
tress, the  call  for  help  of  imperiled  nature. 
This  is  true,  as  I  have  already  remarked, 
both  of  the  moral  and  the  physical  organism; 
and  what  the  pathology  of  the  human  organ- 
ism is  to  the  physician,  the  pathology  of  the 
feeling  of  legal  right  is  to  the  jurist  and  the 
philosopher  in  the  sphere  of  law;  or,  rather, 
it  is  what  it  should  be  to  them,  for  it  would 
be  wrong  to  say  that  it  is  such  to  them 
already.  In  it,  in  truth,  lies  the  whole  secret 
of  the  law.  The  pain  which  a  person  experi- 
ences when  his  legal  rights  are  violated  is 
the  spontaneous,  instinctive  admission,  wrung 
from  him  by  force,  of  what  the  law  is  to  him 

60 


Struggle  for  &tgf)tö  a  |3eröonal  But? 

as  an  individual,  in  the  first  place,  and  then 
of  what  it  is  to  human  society.  In  this  one 
moment,  and  in  the  form  of  an  emotion,  of 
direct  feeling,  we  see  more  of  the  real  meaning 
and  nature  of  the  law  than  during  long  years 
of  undisturbed  enjoyment.  The  man  who 
has  not  experienced  this  pain  himself,  or 
observed  it  in  others,  knows  nothing  of  what 
law  is,  even  if  he  had  committed  the  whole 
corpus  juris  to  memory.  Not  the  intellect, 
but  the  feeling,  is  able  to  answer  this  question; 
and  hence  language  has  rightly  designated 
the  psychological  source  of  all  law  as  the 
feeling  of  legal  right  (Rechtsgefühl).  The  con- 
sciousness of  legal  right  (Rechtsbewusstsein), 
legal  conviction,  are  scientific  abstractions 
with  which  the  people  are  not  acquainted. 
The  power  of  the  law  lies  in  feeling,  just  as 
does  the  power  of  love;  and  the  intellect 
cannot  supply  that  feeling  when  it  is  wanting. 
But  as  love  frequently  does  not  know  itself, 
and  as  a  single  instant  suffices  to  bring  it  to 
a  full  consciousness  of  itself,  so  the  feeling  of 
legal  right  uniformly  knows  not  what  it  is, 

61 


Cfje  Struggle  for  Hato 


and  what  it  can  do,  so  long  as  it  is  not  wound- 
ed; but  the  violation  of  legal  right  compels 
it  to  speak,  unveils  the  truth,  and  manifests 
its  force.  I  have  already  said  in  what  this 
truth  consists.  His  legal  right,  the  law,  is 
the  moral  condition  of  existence  of  the  per- 
son; the  assertion  of  that  right  is  his  moral 
self-preservation. 

The  force  with  which  the  feeling  of  legal 
right  reacts,  when  wounded,  is  the  test  of  its 
health.  The  degree  of  pain  which  it  experi- 
ences tells  it  what  value  it  attaches  to  the 
imperiled  goods.  But  to  experience  the  pain 
without  taking  to  heart  its  warning  to  ward 
off  the  impending  danger,  to  bear  it  patiently 
and  take  no  measure  of  defense,  is  a  denial  of 
the  feeling  of  legal  right,  excusable,  perhaps, 
under  certain  circumstances,  in  a  particular 
case,  but  impossible  in  the  long  run  without 
the  most  disastrous  consequences  to  the  feel- 
ing of  legal  right  itself.  For  the  essence  of 
that  feeling  is  action.  Where  it  does  not 
act,  it  languishes  and  becomes  blunted,  until 
finally    it   grows    almost    insensible    to   pain. 

62 


Struggle  for  Bigfjtö  a  ijßeröonal  JButp 


Irritability,  that  is  the  capacity  to  feel  pain 
at  the  violation  of  one's  legal  rights,  and 
action,  that  is  the  courage  and  the  determi- 
nation to  repel  the  attack,  are,  in  my  eyes,  the 
two  criteria  of  a  healthy  feeling  of  legal  right. 

I  must  refrain  from  elaborating  any  further 
this  interesting  and  instructive  subject  of 
the  pathology  of  the  feeling  of  legal  right; 
but  I  would,  however,  ask  permission  to 
make  a  few  remarks  just  here. 

The  sensitiveness  of  the  feeling  of  legal 
right,  otherwise  the  sentiment  of  law,  is  not 
the  same  in  all  individuals,  but  it  increases 
and  decreases  according  as,  and  to  the  extent 
that,  each  individual  class  or  people  experi- 
ences the  law  as  a  moral  condition  of  exist- 
ence; and  not  the  law  in  general  only,  but  its 
several  parts.  This  I  have  shown  above,  in 
reference  to  property  and  reputation.  As  a 
third  example,  I  may  here  add,  marriage. 
What  reflections  does  not  the  manner  in 
which  different  individuals,  nations,  codes  of 
law,  look  at  adultery,  suggest! 

The  second  element  in  the  feeling  of  legal 

63 


tCfjc  Struggle  for  Hato 


right,  action,  is  a  mere  matter  of  character: 
the  attitude  which  an  individual  or  a  nation 
assumes  towards  an  attempt  on  its  rights 
is  the  surest  test  of  its  character.  If  by- 
character  we  understand  personality,  full, 
self-reliant  and  self-asserting,  there  can  be 
no  better  opportunity  to  test  this  quality 
than  when  arbitrariness  attacks  one's  rights, 
and,  with  his  rights,  his  person.  The  manner 
in  which  the  wounded  feeling  of  law  or  of 
personality  reacts,  whether  under  the  influ- 
ence of  passion  in  wild  and  violent  action,  or 
with  subdued,  persistent  resistance,  is  no 
measure  of  the  intensity  of  the  strength  of 
the  sentiment  of  legal  right;  and  there  can 
be  no  greater  error  than  to  ascribe  to  the 
savage  or  the  uncultured  man,  with  whom 
the  former  manner  is  the  normal  one,  a  strong- 
er feeling  of  legal  right,  than  to  the  educated 
man  who  takes  the  second  course.  This 
manner  is  more  or  less  a  matter  of  education 
and  temperament;  but  a  firm,  tenacious  and 
resolute  resistance  is  in  no  way  inferior  to 
violent   and   passionate   reaction.     It   would 

64 


Struggle  for  &tgf)t£  a  pergonal  JDutp 

be  deplorable  if  it  were  otherwise.  Were 
it  otherwise,  individuals  and  nations  would 
lose  the  feeling  of  legal  right  in  proportion 
as  they  advanced  in  culture.  A  glance  at 
history  and  at  everyday  life  is  sufficient  to 
show  that  this  is  not  the  case.  Nor  is  the 
answer  to  be  found  in  the  contrast  of  rich 
and  poor.  Different  as  is  the  measure  with 
which  the  rich  man  and  the  poor  man  measure 
the  value  of  things,  it  is  not  at  all  applied  in 
the  case  of  a  violation  of  legal  right;  for  here 
the  question  is  not  the  material  value  of  a 
thing,  but  the  ideal  value  of  a  legal  right, 
the  energy  of  the  feeling  of  legal  right  in  rela- 
tion to  property;  and  hence  it  is  not  the 
amount  of  property,  but  the  strength  of  the 
feeling  of  legal  right,  which  here  decides  the 
issue.  The  best  proof  of  this  is  afforded  by 
the  English  people.  Their  wealth  has  caused 
no  detriment  to  their  feeling  of  legal  right; 
and  what  energy  it  still  possesses,  even  in 
pure  questions  of  property,  we,  on  the  Con- 
tinent, have  frequently  proof  enough  of,  in 
the  typical  figure  of  the  traveling  English- 

65 


GHje  Struggle  for  Hato 


man  who  resists  being  duped  by  inn-keepers 
and  hackmen  with  a  manfulness  which  would 
induce  one  to  think  he  was  defending  the 
law  of  Old  England  —  who,  in  case  of  need, 
postpones  his  departure,  remains  days  in  the 
place  and  spends  ten  times  the  amount  he 
refuses  to  pay.  The  people  laugh  at  him, 
and  do  not  understand  him.  It  were  better 
if  they  did  understand  him.  For,  in  the  few 
shillings  which  the  man  here  defends,  Old 
England  lives.  At  home,  in  his  own  country, 
every  one  understands  him,  and  no  one  lightly 
ventures  to  overreach  him.  Place  an  Austrian 
of  the  same  social  position  and  the  same 
means  in  the  place  of  the  Englishman  —  how 
would  he  act?  If  I  can  trust  my  own  experi- 
ence in  this  matter,  not  one  in  ten  would 
follow  the  example  of  the  Englishman.  Others 
shun  the  disagreeableness  of  the  controversy, 
the  making  of  a  sensation,  the  possibility  of 
a  misunderstanding  to  which  they  might 
expose  themselves,  a  misunderstanding  which 
the  Englishman  in  England  need  not  at  all 
fear,    and   which   he   quietly   takes   into   the 

66 


Struggle  for  fttgfjtö  a  $eröonal  ©utp 

bargain:  that  is,  they  pay.  But  in  the  few 
pieces  of  silver  which  the  Englishman  re- 
fuses and  which  the  Austrian  pays  there  lies 
concealed  more  than  one  would  think,  of 
England  and  Austria;  there  lie  concealed 
centuries  of  their  political  development  and 
of  their  social  life. 


67 


CHAPTER  IV 

THE  ASSERTION  OF  ONE'S  RIGHTS  A  DUTY 
TO  SOCIETY 

1HUS  far  I  have  endeavored  to 
establish  the  first  of  the  principles 
laid  down  above,  that  the  struggle 
for  law  is  a  duty  of  the  person  hav- 
ing rights,  to  himself.  I  now  turn  to  the 
second;  viz.,  that  the  assertion  of  one's  legal 
rights  is  a  duty  which  he  owes  to  society. 

To  establish  this  principle,  it  is  necessary 
that  I  should  examine  somewhat  more  closely 
the  relation  of  law  in  the  objective  sense  to 
law  in  the  subjective  sense  of  the  term.  In 
what  does  the  relation  consist?  I  state,  I 
believe,  the  theory  admitted  in  our  days, 
accurately,  when  I  say  that  it  consists  in 
this:  that  the  former  is  the  condition  pre- 
cedent of  the  latter.  A  concrete  legal  right 
exists  only  where  the  conditions   are  to  be 

69 


{Efje  Struggle  for  Hato 


found  which  the  abstract  principle  of  law 
has  attached  to  its  being.  When  we  have 
said  this,  we  have,  according  to  the  prevailing 
theory,  completely  exhausted  their  relation 
to  one  another.  But  this  view  is  altogether 
one-sided.  It  lays  stress  exclusively  on  the 
dependence  of  the  concrete  law  on  the  ab- 
stract, but  overlooks  the  fact  that  there  is, 
just  as  much,  a  similar  relation  of  dependence 
in  the  opposite  direction.  Concrete  law  not 
only  receives  life  and  strength  from  abstract 
law,  but  gives  it  back,  in  turn,  the  life  it  has 
received.  It  is  of  the  nature  of  the  law  to  be 
realized  in  practice.  A  principle  of  law  never 
applied  in  practice,  or  which  has  lost  its 
force,  no  longer  deserves  the  name;  it  is  a 
worn-out  spring  in  the  machinery  of  the  law, 
which  performs  no  service  and  which  may 
be  removed  without  changing  its  action  in 
the  least.  This  applies  without  limitation 
to  all  parts  of  the  law  —  to  the  law  of  nations 
as  well  as  to  private  and  criminal  law;  and  the 
Roman  law  has  given  it  its  express  sanction, 
inasmuch    as    it    considers    desuetudo    as    an 

70 


gssertton  of  &igf)tö  a  foetal  But? 


abrogation  of  a  law.  This  desuetudo  cor- 
responds to  loss  of  concrete  legal  rights  by 
non-user  (non-usus).  But  while  the  realiza- 
tion in  practice  of  public  law  and  of  criminal 
law  is  assured,  because  it  is  imposed  as  a 
duty  on  public  officials,  the  realization  in 
practice  of  private  law  is  presented  to  indi- 
viduals under  the  form  of  their  legal  rights; 
that  is,  it  is  left  exclusively  to  them  to  take 
the  initiative  in  its  realization,  left  exclusively 
to  their  action.  In  the  former  case,  its 
practical  realization  depends  on  the  perform- 
ance of  their  duty  by  the  authorities  and 
public  officials,  and,  in  this  latter  case,  on  the 
assertion  by  individuals  of  their  legal  rights. 
If  the  latter,  for  any  reason,  neglect  to  assert 
their  rights,  permanently  and  generally,  be 
it  from  ignorance,  love  of  ease,  or  fear,  the 
consequence  is  that  the  principles  of  right 
lose  their  vigor.  And  so  we  may  say:  The 
reality,  the  practical  force  of  the  principles 
of  private  law,  is  proved  by  the  assertion  of 
concrete  legal  right;  and  as,  on  the  one  hand, 
the  latter  receives  its  life  from  the  laws,  it, 

71 


&fje  Struggle  for  Hato 


on  the  other,  gives  back  life  to  the  laws;  the 
relation  of  objective  or  abstract  legal  right 
and  subjective  or  concrete  legal  right  is  the 
circulation  of  the  blood,  which  flows  from  the 
heart  and  returns  to  the  heart. 

The  existence  of  all  the  principles  of  public 
law  depends  on  the  fidelity  of  public  officials 
in  the  performance  of  their  duties;  that  of  the 
principles  of  private  law,  on  the  power  of  the 
motives  which  induce  the  person  whose  rights 
have  been  violated  to  defend  them:  his  inter- 
est and  his  sentiment  of  legal  right.  If  these 
motives  do  not  come  into  play,  if  the  feeling 
of  legal  right  is  blunted  and  weak,  and  inter- 
est not  powerful  enough  to  overcome  the 
disinclination  to  entering  into  a  controversy 
and  the  indisposition  to  go  to  law,  the  conse- 
quence is  that  the  principle  of  law  involved 
finds  no  application. 

But,  we  shall  be  asked,  what  matters  it? 
No  one  suffers  from  this  but  the  person  whose 
rights  have  been  invaded.  I  must  again 
have  recourse  to  the  illustration  already  used, 
of  the  individual  who  flees  the  battle.     If  there 

72 


gteaerttcm  of  Eigfctö  a  Social  But? 


are  a  thousand  men  in  the  fight,  the  defection 
of  one  may  make  no  difference;  but  if  a  hun- 
dred of  them  desert  their  colors,  the  position 
of  those  who  remain  faithful  becomes  more 
and  more  perilous;  the  whole  weight  of  the 
battle  falls  on  them  alone.  This,  it  seems  to 
me,  is  a  correct  representation  of  the  state 
of  the  question.  In  the  domain  of  private 
law  also,  there  is  a  question  of  a  struggle  of 
legal  right  against  injustice,  of  a  common 
struggle  of  the  whole  nation,  in  which  all 
should  cling  together.  Desertion,  in  such  a 
case,  is  treason  to  the  common  cause,  for  it 
strengthens  the  common  enemy  by  increasing 
his  boldness  and  audacity.  When  arbitrari- 
ness and  audacity  boldly  dare  to  lift  their 
head,  it  is  always  a  sure  sign  that  those  who 
are  called  to  defend  the  law  have  not  done 
their  duty.  But  each  of  us,  in  his  own  place, 
is  called  upon  to  defend  the  law,  to  guard  and 
enforce  it  in  his  own  sphere.  The  concrete 
legal  right  which  belongs  to  him  is  only  his 
authorization  by  the  state  to  enter  the  lists 
when  his  interests  require  it,  for  the  law,  and 

73 


{Efce  Struggle  for  Hato 


to  ward  off  injustice  —  a  call  made  upon 
him  which  is  partial  and  limited,  in  contra- 
distinction to  that  made  upon  the  public 
official,  which  is  absolute  and  unlimited.  In 
defending  his  legal  rights  he  asserts  and 
defends  the  whole  body  of  law,  within  the 
narrow  space  which  his  own  legal  rights  occupy. 
Hence  his  interest,  and  this,  his  mode  of 
action,  extend  far  beyond  his  own  person. 
The  general  good  which  results  therefrom  is 
not  only  the  ideal  interest,  that  the  authority 
and  majesty  of  the  law  are  protected,  but  this 
other  very  real  and  eminently  practical  good 
which  every  one  feels  and  understands,  even 
the  person  who  has  no  conception  whatever 
of  the  former  —  that  the  established  order 
of  social  relations  is  defended  and  assured. 
When  the  master  can  no  longer  insist  that 
the  servant  shall  do  his  duty,  when  the  credi- 
tor cannot  enforce  payment  by  his  debtor, 
when  the  public  attach  no  great  importance 
to  the  correctness  of  weights  and  measures, 
can  it  be  said  that  nothing  is  imperiled  but 
the  authority  of  the  law?     When  these  things 

74 


gsföertton  of  ikigfjtö  a  Social  Butp 

come  to  pass,  the  order  of  civil  life  is  sacrificed 
in  one  direction,  and  it  is  not  easy  to  say  how 
far  the  disastrous  consequences  produced 
may  reach;  whether,  for  instance,  the  whole 
system  of  credit  may  not  be  seriously  affected 
thereby.  For  every  man  will  do  all  in  his 
power  to  have  nothing  to  do  with  people  who 
force  him  to  wrangle  and  struggle  where  his 
legal  right  is  clear;  and  he  will  transfer  his 
capital  to  other  places  and  order  his  goods 
elsewhere. 

Under  such  circumstances,  the  lot  of  the 
few  who  have  the  courage  to  enforce  the  law 
becomes  a  real  martyrdom.  Their  strong 
feeling  of  legal  right,  which  will  not  permit 
them  to  quit  the  field,  becomes  a  curse  to 
them.  Forsaken  by  all  who  should  have 
been  their  natural  allies,  they  stand  alone 
against  the  lawlessness  which  has  grown  up 
in  consequence  of  universal  indolence  and 
cowardice;  and  if,  after  all  their  sacrifices, 
they  earn  the  satisfaction  of  having  remained 
true  to  themselves,  they  reap,  instead  of 
gratitude,  ridicule  and  scorn.     The  responsi- 

75 


GTJje  Struggle  for  Hato 


bility  for  this  state  of  things  falls  not  upon 
those  who  transgress  the  law,  but  on  those 
who  have  not  the  courage  to  assert  it.  Do  not 
accuse  injustice  of  usurping  the  place  of  the 
law,  but  the  law  of  permitting  that  usurpation. 
If  I  were  called  upon  to  pass  judgment  on 
the  practical  importance  of  the  two  princi- 
ples: "Do  no  injustice,"  and:  "Suffer  no 
injustice,"  I  would  say  that  the  first  rule  was: 
Suffer  no  injustice,  and  the  second:  Do  none! 
If  we  take  man  as  he  actually  is,  there  is  no 
doubt  that  the  certainty  of  meeting  a  firm 
and  resolute  resistance  is  far  more  powerful  to 
prevent  the  commission  of  an  injustice,  than 
a  simple  prohibition  which  has,  in  fact,  no 
greater  practical  force  than  a  moral  precept. 
After  all  this,  can  I  be  charged  with  claim- 
ing too  much  when  I  say:  The  defense  of  one's 
concrete  legal  rights,  when  these  rights  are 
attacked,  is  a  duty  of  the  individual  whose 
rights  have  been  invaded,  not  only  to  himself, 
but  also  to  society?  If  what  I  have  said  be 
true,  that  in  defending  his  legal  right  he,  at 
the  same  time,  defends  the  law,  and  in  the 

76 


gööertton  of  &tgf)tö  a  Social  But? 


law  that  public  order  which  is  indispensable, 
who  can  deny  that,  in  defending  them,  he 
fulfills  a  duty  to  the  commonwealth?  If 
the  latter  may  summon  him  to  fight  a  foreign 
enemy  and  to  risk  his  life  in  battle  with  him; 
if  it  be  every  one's  duty  to  defend  the  common 
interests  of  the  country,  when  attacked  from 
without,  why  should  not  all  courageous  and 
well-minded  men  unite  to  resist  the  enemy 
at  home  ?  And  if,  in  the  former  case,  cowardly 
flight  is  considered  treason  to  the  common 
cause,  why  is  it  not  treason  in  the  latter  also? 
Law  and  justice  cannot  thrive  in  a  country 
simply  because  the  judge  sits  always  ready 
on  the  bench,  and  the  agents  of  the  police 
power  are  ever  at  its  command.  That  they 
may  thrive,  every  member  of  society  must 
co-operate  with  these.  Every  one  is  called 
upon,  and  it  is  every  one's  duty,  to  crush  the 
hydra-head  of  arbitrariness  and  lawlessness, 
whenever  they  show  it.  Every  man  who 
enjoys  the  blessings  of  the  law  should  also 
contribute  his  share  to  maintain  the  power 
of  the  law  and  respect  for  the  law.     Every 

77 


&\)t  Struggle  for  Hato 


man  is  a  born  battler  for  the  law  in  the  inter- 
est of  society. 

I  do  not  need  to  call  attention  to  the  extent 
to  which  the  vocation  of  the  individual  to 
assert  his  legal  right  is  ennobled  when  it  is 
viewed  in  this  way.  Our  actual  theory  tells 
us  only  of  a  purely  passive  attitude  towards 
the  law;  the  doctrine  here  advocated  puts  in 
its  place  one  of  reciprocity,  in  which  the 
person  with  legal  rights  returns  to  the  law 
the  service  which  he  receives  from  it.  Our 
doctrine  thus  looks  upon  him  as  a  collaborator 
in  a  great  national  work.  Whether  the  per- 
son himself  looks  upon  it  in  this  way  is  a 
matter  of  no  moment.  For  the  grand  and 
the  sublime  in  the  moral  order  of  the  world 
is  that  it  can  count  on  the  services  not  only 
of  those  who  comprehend  it,  but  that  it 
possesses  efficacious  means  enough  to  make 
those  who  do  not  understand  its  commands 
labor  for  it  without  their  knowledge  or  their 
will.  To  force  men  to  engage  in  the  matri- 
monial relation,  it  brings  into  play,  in  the 
case  of  some  men,  the  noblest  of  all  human 

78 


gsßertton  of  &igf)tö  a  foetal  3Butp 

instincts,  in  the  case  of  others  sensual  pleas- 
ure, in  a  third  case  convenience,  in  a  fourth 
covetousness  —  but  all  these  motives  lead 
to  marriage.  And  so,  in  the  struggle  for  law, 
interest  calls  one  to  the  scene  of  strife,  pain 
at  the  spectacle  of  violated  legal  right  another, 
the  idea  of  law  a  third  —  they  all  lend  each 
other  a  hand  in  the  common  work,  opposition 
to  arbitrariness. 

We  have  now  reached  the  ideal  height  of 
the  struggle  for  law.  Rising  from  the  lower 
motive  of  interest  we  have  lifted  ourselves 
to  the  point  of  view  of  the  moral  self-preser- 
vation of  the  person  and  finally  come  to 
co-operation  in  the  realization  of  the  idea 
of  law. 

In  my  rights  the  law  was  violated  and 
denied.  In  my  rights  it  is  defended,  asserted 
and  restored.  What  an  immense  impor- 
tance does  the  struggle  of  the  individual  for 
his  rights  thus  obtain!  How  far  below  the 
height  of  this  ideal,  universal  interest  in  the 
law,  lies  the  sphere  of  that  which  is  purely 
individual,   the   region  of  personal  interests, 

79 


{Cfje  Struggle  for  Hato 


aims,  and  passions  which  the  uncultured  man 
looks  upon  as  the  real  domain  of  the  law! 

But  that  height,  many  may  say,  is  so  great 
that  it  is  visible  only  to  the  eyes  of  the  philoso- 
phy of  law;  it  is  never  thought  of  in  practical 
life;  no  one  institutes  an  action  for  the  sake  of 
the  idea  of  law.  To  refute  this  statement,  I 
might  refer  to  the  Roman  law,  in  which  the 
actuality  of  this  ideal  view  is  attested  most 
clearly  by  the  existence  of  the  popular  ac- 
tions,1 but  we  would   be   doing  ourselves   a 


]I  would  remark,  for  the  benefit  of  those  of  my  readers  who  have 
not  studied  law,  that  these  suits  (actiones  populäres)  afforded  an 
opportunity  to  all  who  desired  it  to  appear  as  representatives  of  the 
law  and  to  bring  those  who  had  violated  it  to  account;  and  not  only 
where  there  was  question  of  the  public  interest,  and  consequently 
also  of  that  of  the  accuser,  but  wherever  an  individual  whose  rights 
had  been  violated  was  not  in  a  way  to  defend  himself  fully,  as,  for 
instance,  when  a  minor  had  been  wronged  in  a  contract  of  sale,  or 
where  a  tutor  had  been  unfaithful  to  his  pupil,  etc.  See  my  "Geist 
des  röm.  Rechts,"  iii,  p.  107.  These  actions,  therefore,  involved  an 
appeal  to  the  ideal  feeling  which  defends  the  law  because  it  is  the 
law,  and  not  on  account  of  any  personal  interest.  Others  of  these 
actions  appealed  to  the  ordinary  motive  of  cupidity,  by  causing  the 
accuser  to  hope  for  the  fine  imposed  on  the  accused,  and  hence  it  is 
that  the  same  stain  attached  to  them,  or  rather  to  their  institution 
for  gain,  which  among  us  attaches  to  informers.  When  I  add  that 
the  actions  of  the  second  class  mentioned  above  disappeared  in  the 
later  Roman  law,  and  that  those  of  the  first  have  disappeared  in  our 
own,  every  reader  will  be  able  to  draw  the  correct  conclusion  from 
these  premises;  viz.,  that  the  conditions  which  they  supposed  had 
disappeared. 

80 


gteöertton  of  &tgfjtö  a  foetal  But? 

great  injustice,  if  we  were  to  deny  that  we 
also  possessed  this  ideal  feeling.  Every  man 
who  sees  the  law  violated  and  feels  indigna- 
tion at  the  sight,  possesses  it.  While,  in 
fact,  an  egotistical  motive  is  mixed  up  with 
the  painful  feeling  caused  by  a  personal 
wrong,  this  indignation  is  produced  exclusive- 
ly by  the  power  of  morality  over  the  human 
heart.  It  is  the  energy  of  our  moral  nature 
protesting  against  the  violation  of  the  law; 
it  is  the  most  beautiful  and  the  highest 
testimony  which  the  feeling  of  legal  right  can 
bear  to  itself;  it  is  a  moral  phenomenon  which 
calls  for  the  study  of  the  psychologist  and 
appeals  to  the  imagination  of  the  poet.  No 
other  feeling,  so  far  as  I  know,  is  able  so  sud- 
denly, so  radically,  to  make  a  change  in  man; 
for  it  is  a  demonstrated  fact  that  it  has  the 
power  to  rouse  the  gentlest  and  most  con- 
ciliating natures  to  a  pitch  of  passion  which 
is  otherwise  entirely  foreign  to  them;  a  fact 
which  proves  that  they  have  been  wounded 
in  the  noblest  part  of  their  being  and  touched 
in  its  most  sensitive  fibres.     It  is  the  phenom- 


1&\)t  Struggle  for  Hato 


enon  of  the  storm  in  the  moral  world :  sublime, 
majestic  in  the  rapidity,  suddenness,  and 
power  with  which  it  breaks  forth,  in  the 
strength  of  that  moral  force,  which  like  a 
tempest  or  the  elements  in  a  fury,  sweeps 
everything  before  it,  then  grows  calm  and 
beneficent,  and  produces  a  purification  of 
the  moral  atmosphere  enjoyed  both  by  the 
individual  and  by  all.  But  if  the  limited 
power  of  the  individual  spends  itself  in  vain 
against  institutions  which  afford  a  protection 
to  lawlessness  which  they  refuse  to  right,  it 
is  plain  that  the  storm  recoils  on  the  head  of 
its  author;  and  then  one  of  two  things:  either 
his  wounded  feeling  of  legal  right  will  make  of 
him  one  of  those  criminals  of  whom  I  shall 
speak  further  on,  or  he  will  afford  us  the  no 
less  tragical  spectacle  of  a  man  who,  ever 
bearing  in  his  breast  the  sting  which  injustice 
that  he  has  not  been  able  to  resist,  has  left 
there,  gradually  loses  his  moral  life  and  all 
faith  in  the  law. 

I  readily  grant  that  this  ideal  sentiment  of 
legal  right,  possessed  by  the  person  by  whom 

82 


gööerttcm  of  &igfjtö  a  foetal  But? 

the  wounding  of  the  feeling  of  legal  right  is 
felt  more  sensitively  than  an  attack  upon  him 
personally,  and  who  disinterestedly  sacrifices 
himself  in  the  interest  of  oppressed  right  as 
if  there  were  question  only  of  his  own  rights, 
is  the  privilege  of  highly  gifted  natures.  How- 
ever, even  the  cold  feeling  of  legal  right,  desti- 
tute of  all  idealism,  which  is  affected  only  by 
the  wrong  done  to  itself,  fully  understands  the 
relation  between  concrete  legal  right  and  the 
law,  which  I  have  demonstrated  and  summed 
up  thus:  My  legal  right  is  the  law;  when  my 
legal  right  is  violated,  the  law  is  violated; 
when  it  is  asserted,  the  law  is  asserted.  It 
sounds  paradoxical,  and  yet  it  is  true,  that 
precisely  among  jurists  this  view  is  far  from 
being  usual.  According  to  their  view,  in 
the  struggle  for  concrete  legal  rights,  the  law 
itself  is  in  no  way  involved;  the  struggle  does 
not  turn  on  the  abstract  law,  but  on  its 
incorporation  in  the  form  of  this  concrete 
legal  right,  a  photograph,  so  to  speak,  of 
that  law,  in  which  it  has  become  fixed,  but 
in  which  it  is  not  itself  directly  affected.     I 

83 


QTfje  Struggle  for  £ato 


do  not  intend  to  question  the  technical  neces- 
sity of  this  view,  but  it  should  not  keep  us 
from  acknowledging  the  correctness  of  the 
opposed  view,  which  places  the  law  on  the 
same  level  with  concrete  legal  right,  and  sees 
in  the  imperiling  of  the  latter  the  imperiling 
of  the  former  also.  To  the  unprejudiced 
feeling  of  right,  the  latter  view,  it  seems  to 
me,  must  commend  itself  much  more  strongly 
than  the  former.  The  best  proof  of  what 
I  here  allege  is  the  expression  which  the 
Germans  employ,  and  which  was  used  in  the 
Latin.  In  a  case  at  law,  the  plaintiff  is  said 
in  Germany  to  invoke  the  law  {das  Gesetz 
anrufen) ;  the  Romans  called  the  complaint 
legis  actio.  The  law  itself  is  called  in  ques- 
tion; it  is  the  law  itself  which  is  under  dis- 
cussion in  a  particular  case  —  a  view  of  the 
highest  importance  for  the  understanding  of 
the  old  Roman  process,  legis  actio.  Hence 
the  struggle  for  one's  legal  rights  is,  at  the 
same  time,  a  struggle  for  the  law.  There  is 
question  not  alone  of  a  personal  interest,  of 
a  single  relation  in  which  the  law  has  been 

84 


gteöertion  of  Bigfjtö  a  foetal  Butp 

incorporated,  of  a  photographic  picture,  as 
I  have  called  it,  in  which  a  transient  ray  of 
the  law  has  perpetuated  itself,  and  which 
may  be  broken  up  and  divided  without 
affecting  the  law;  but  there  is  a  question  of 
the  law  itself  which  has  been  despised,  tram- 
pled under  foot,  and  which  must  be  defended, 
if  the  law  itself  is  not  to  become  a  mockery 
and  a  word  without  meaning.  When  the 
legal  right  of  the  individual  is  sacrificed,  the 
law  is  sacrificed  likewise. 

This  view,  which  I  may  call  the  solidarity 
of  the  law  with  concrete  legal  right,  is,  as  I 
have  shown  above,  the  real  expression  of 
their  relations  in  their  most  intimate  nature. 
It  is  not,  however,  so  very  obscure  but  that 
the  mere  egotist,  incapable  of  entertaining 
an  elevated  idea,  may  catch  it.  On  the 
contrary,  it  may  be  the  one  which  he  under- 
stands the  most  readily,  for  his  interest  is  to 
associate  himself  with  the  state  in  the  struggle. 
And  thus  even  he  is,  without  his  knowledge 
or  his  will,  lifted  above  himself  and  his  legal 
right  to  that  ideal  social  eminence  where  he 

85 


W$t  Struggle  for  Hato 


becomes  the  representative  of  the  law.  The 
truth  remains  truth,  even  when  the  individual 
defends  it  only  from  the  narrow  point  of  view 
of  his  personal  interest.  It  is  hatred  and 
revenge  that  take  Shylock  before  the  court  to 
cut  his  pound  of  flesh  out  of  Antonio's  body; 
but  the  words  which  the  poet  puts  into  his 
mouth  are  as  true  in  it  as  in  any  other.  It  is 
the  language  which  the  wounded  feeling  of 
legal  right  will  speak,  at  all  times  and  in  all 
places;  the  power,  the  firmness  of  the  convic- 
tion, that  law  must  remain  law,  the  lofty 
feeling  and  pathos  of  a  man  who  is  con- 
scious that,  in  what  he  claims,  there  is  ques- 
tion not  only  of  his  person  but  of  the  law. 
"The  pound  of  flesh,"  Shakespeare  makes 
him  say:  — 

"The  pound  of  flesh,  which  I  demand  of  him, 
Is  dearly  bought,  is  mine,  and  I  will  have  it; 
If  you  deny  me,  fie  upon  your  law; 
There  is  no  force  in  the  decrees  of  Venice. 

I  crave  the  law. 

I  stay  here  upon  my  bond." 

"I  crave  the  law."     In  these  four  words, 
the  poet  has  described  the  relation  of  law  in 

86 


gööertion  of  &isf)tö  a  foetal  3©utp 


the  subjective,  to  law  in  the  objective  sense 
of  the  term  and  the  meaning  of  the  struggle 
for  law,  in  a  manner  better  than  any  philoso- 
pher of  the  law  could  have  done  it.  These 
four  words  change  Shylock's  claim  into  a 
question  of  the  law  of  Venice.  To  what 
mighty,  giant  dimensions  does  not  the  weak 
man  grow,  when  he  speaks  these  words! 
It  is  no  longer  the  Jew  demanding  his  pound 
of  flesh;  it  is  the  law  of  Venice  itself  knocking 
at  the  door  of  Justice;  for  his  rights  and  the 
law  of  Venice  are  one  and  the  same;  they  both 
stand  or  fall  together.  And  when  he  finally 
succumbs  under  the  weight  of  the  judge's 
decision,  who  wipes  out  his  rights  by  a  shocking 
piece  of  pleasantry,1  when  we  see  him  pursued 


1  The  eminently  tragic  interest  which  we  feel  in  Shylock,  I  find  to 
have  its  basis  precisely  in  the  fact  that  justice  is  not  done  him;  for 
this  is  the  conclusion  to  which  the  lawyer  must  come.  The  poet  is, 
of  course,  free  to  build  up  his  own  system  of  jurisprudence,  and  we 
have  no  reason  to  regret  that  Shakespeare  has  done  so  here;  or 
rather  that  he  has  changed  the  old  fable  in  nothing.  But  when  the 
jurist  submits  the  question  to  a  critical  examination,  he  can  only  say 
that  the  bond  was  in  itself  null  and  void  because  its  provisions  were 
contrary  to  good  morals.  The  judge  should,  therefore,  have  refused 
to  enforce  its  terms  on  this  ground  from  the  first.  But  as  he  did  not 
do  so,  as  the  "wise  Daniel"  admitted  its  validity,  it  was  a  wretched 
subterfuge,  a  miserable  piece  of  pettifoggery,  to  deny  the  man  whose 

87 


Efje  Struggle  for  Hato 


by  bitter  scorn,  bowed,  broken,  tottering  on 
his  way,  who  can  help  feeling  that  in  him 
the  law  of  Venice  is  humbled;  that  it  is  not 
the  Jew,  Shylock,  who  moves  painfully  away, 
but  the  typical  figure  of  the  Jew  in  the  middle 
ages,  that  pariah  of  society  who  cried  in  vain 
for  justice?  His  fate  is  eminently  tragic,  not 
because  his  rights  are  denied  him,  but  be- 
cause he,  a  Jew  of  the  middle  ages,  has  faith 
in  the  law  —  we  might  say  just  as  if  he  were 
a  Christian  —  a  faith  in  the  law  firm  as  a 
rock  which  nothing  can  shake,  and  which 
the  judge  himself  feeds  until  the  catastrophe 
breaks  upon  him  like  a  thunder  clap,  dispels 
the  illusion  and  teaches  him  that  he  is  only 
the  despised  medieval  Jew  to  whom  justice 
is  done  by  defrauding  him. 

right  he  had  already  admitted,  to  cut  a  pound  of  flesh  from  the  living 
body,  the  right  to  the  shedding  of  the  blood  which  necessarily 
accompanied  it.  Just  as  well  might  the  judge  deny  to  the  person 
whose  right  to  an  easement  he  acknowledged,  the  right  to  leave  foot- 
marks on  the  land,  because  this  was  not  expressly  stipulated  for  in 
the  grant.  One  might  almost  believe  that  the  tragedy  of  Shylock 
was  enacted  in  the  earliest  days  of  Rome;  for  the  author  of  the 
Twelve  Tables  held  it  necessary  to  remark  expressly  in  relation  to 
the  laceration  of  the  debtor  (in  partes  secare)  by  the  creditor,  that 
the  size  of  the  piece  should  be  left  to  his  free  choice.  (Si  plus  minusve 
secuerint,  sine  fraude  esto!) 


gsßertton  of  &tgfjts;  a  foetal  Butp 

The  picture  of  Shylock  conjures  up  another 
before  my  mind,  the  no  less  historical  than 
poetical  one  of  Michel  Kohlhaas,  which 
Heinrich  von  Kleist  has  described  in  his 
novel  of  that  name  with  all  the  fascination 
of  truth.  Shylock  retires  from  the  scene 
entirely  broken  down  by  grief;  his  strength 
is  gone  and  he  bows  without  resistance  to 
the  decision  of  the  judge.  Not  so  Michel 
Kohlhaas.  After  every  means  to  obtain  his 
rights,  which  have  been  most  grievously 
violated,  has  been  exhausted;  after  an  act 
of  sinful  cabinet-justice  has  closed  the  way 
of  redress  to  him,  and  Justice  herself  in  all  her 
representatives,  even  to  the  highest,  has 
sided  with  injustice,  a  feeling  of  infinite  woe 
overpowers  him  at  the  contemplation  of  the 
outrage  that  has  been  done  him  and  he  ex- 
claims: "Better  be  a  dog,  if  I  am  to  be  tram- 
pled under  foot,  than  a  man";  and  he  says: 
"The  man  who  refuses  me  the  protection  of 
the  law  relegates  me  to  the  condition  of  the 
savage  of  the  forest,  and  puts  a  club  in  my 
hand  to  defend  myself  with."     He  snatches 

89 


&fje  Struggle  for  Hato 


the  soiled  sword  out  of  the  hand  of  such 
venal  Justice  and  brandishes  it  in  a  manner 
that  spreads  consternation  far  and  wide 
through  the  country,  causes  the  state  to  shake 
to  its  very  foundations  and  the  prince  to 
tremble  on  his  throne.  It  is  not,  however, 
the  savage  feeling  of  vengeance  that  animates 
him;  he  does  not  turn  murderer  and  brigand, 
like  Karl  Moor,  who  wished  "to  make  the 
cry  of  revolt  resound  through  all  nature  to 
lead  into  the  fight  against  the  race  of  hyenas, 
air,  earth  and  sea,"  whose  wounded  feeling 
of  justice  causes  him  to  declare  war  against 
all  humanity;  but  it  is  a  moral  idea  which 
urges  him  forward,  the  idea  that  "it  is  his 
duty  to  the  entire  world  to  consecrate  all  his 
strength  to  the  obtaining  of  satisfaction  and 
to  the  guarding  of  his  fellow-citizens  against 
similar  injustice."  To  this  idea  he  sacrifices 
everything,  his  family's  happiness,  the  honor 
of  his  name,  all  his  earthly  possessions,  his 
blood,  and  his  life;  and  he  carries  on  no  aim- 
less war  of  extermination,  for  he  directs  it 
only  against  the  guilty  one,  and  against  all 

90 


gööertton  of  a&tgfjtsi  a  Social  Butp 


those  who  make  common  cause  with  him. 
At  last,  when  the  hope  of  obtaining  justice 
dawns  upon  him,  he  voluntarily  lays  down 
his  arms;  but,  as  if  chosen  to  illustrate  by 
example  to  what  depth  of  ignominy  the  dis- 
regard of  law  and  dishonor  could  descend  at 
that  time,  the  safe  conduct  given  him,  and 
the  amnesty  are  violated,  and  he  ends  his  life 
on  the  place  of  execution.  However,  before 
his  life  is  taken  from  him,  justice  is  done 
him,  and  the  thought  that  he  has  not  fought 
in  vain,  that  he  has  restored  respect  for  the 
law  and  preserved  his  dignity  as  a  human 
being,  makes  him  smile  at  the  horrors  of 
death;  and,  reconciled  with  himself,  the  world, 
and  God,  he  gladly  and  resolutely  follows  the 
executioner.  What  reflections  does  not  this 
legal  drama  suggest!  Here  is  an  honest  and 
good  man,  filled  with  love  for  his  family,  with 
a  simple,  religious  disposition,  who  becomes 
an  Attila  and  destroys  with  fire  and  sword 
the  cities  in  which  his  enemy  has  taken  refuge. 
And  how  is  this  transformation  effected? 
By  the  very  quality  which  lifts  him  morally 

9i 


%\)t  Struggle  for  Hato 


high  above  all  his  enemies  who  finally  triumph 
over  him;  by  his  high  esteem  for  the  law,  his 
faith  in  its  sacredness,  the  energy  of  his 
genuine,  healthy  feeling  of  legal  right.  The 
tragedy  of  his  fate  lies  in  this  that  his  ruin  was 
brought  about  by  the  superiority  and  nobility 
of  his  nature,  his  lofty  feeling  of  legal  right,  and 
his  heroic  devotion  to  the  idea  of  law,  which 
made  him  oblivious  to  all  else  and  ready  to 
sacrifice  everything  for  it,  in  contact  with  the 
miserable  world  of  the  time  in  which  the 
arrogance  of  the  great  and  the  powerful  was 
equaled  only  by  the  venality  and  cowardice 
of  the  judges.  The  crimes  which  he  com- 
mitted fall  much  more  heavily  on  the  prince, 
his  functionaries  and  his  judges,  who  forced 
him  out  of  the  way  of  the  law  into  the  way 
of  lawlessness.  For  no  wrong  which  man 
has  to  endure,  no  matter  how  grievous,  can 
at  all  compare,  at  least  in  the  eyes  of  ingenu- 
ous moral  feeling,  with  that  which  the  author- 
ity established  by  God  commits  when  it  itself 
violates  the  law.  Judicial  murder  is  the 
deadly  sin  of  the  law.     The  guardian   and 

92 


&ööertton  of  &igf)tö  a  Social  3Butp 


sentinel  of  the  law  is  changed  into  its  mur- 
derer; the  physician  poisons  his  patient;  the 
guardian  strangles  his  ward.  In  ancient 
Rome,  the  corrupt  judge  was  punished  with 
death.  For  the  justice  which  has  violated 
the  law  there  is  no  accuser  as  terrible  as  the 
sombre,  reproachful  form  of  the  criminal 
made  a  criminal  by  his  wounded  feeling  of 
legal  right  —  it  is  its  own  bloody  shadow. 
The  victim  of  corrupt  and  partial  justice  is 
driven  almost  violently  out  of  the  way  of 
the  law;  he  becomes  the  avenger  of  his  own 
wrong,  the  executor  of  his  own  rights,  and  it 
not  infrequently  happens  that,  overshooting 
the  mark,  he  becomes  the  sworn  enemy  of 
society,  a  robber  and  a  murderer.  If,  like 
Michel  Kohlhaas,  his  nature  be  noble  and 
moral,  it  may  guard  him  against  going  so 
far  astray,  but  he  will  become  a  criminal, 
and  by  suffering  the  penalty  of  his  crime,  a 
martyr  to  his  feeling  of  legal  right.  It  is 
said  that  the  blood  of  martyrs  does  not  flow 
in  vain,  and  the  saying  may  have  been  true 
of  him.     It  may  be  that  his  warning  shadow 

93 


Cfje  Struggle  for  Hato 


sufficed  for  a  long  time  to  make  the  legal 
oppression  of  which  he  was  the  victim  an 
impossibility. 

In  conjuring  up  this  shadow,  I  have  desired 
to  show  by  a  striking  example  how  far  the 
very  man  whose  sentiment  of  legal  right  is 
strongest  and  most  ideal  may  go  astray  when 
the  imperfection  of  legal  institutions  refuses 
him  satisfaction.  Here  the  struggle  for  law 
becomes  a  struggle  against  the  law.  The 
feeling  of  legal  right,  left  in  the  lurch  by  the 
power  which  should  protect  it,  itself  abandons 
the  ground  of  the  law  and  endeavors,  by  help- 
ing itself,  to  obtain  what  ignorance,  bad  will, 
or  impotence  refuses  it.  And  it  is  not  only  a 
few  very  strong  and  violent  characters,  in 
which  the  national  feeling  of  legal  right 
raises  its  protest  against  such  a  condition  of 
things,  but  this  protest  is  sometimes  repeated 
by  the  whole  population  under  certain  forms, 
which,  according  to  their  object  or  to  the 
manner  in  which  the  whole  people  or  a  definite 
class  look  upon  them  or  apply  them,  may  be 
considered   as   popular   substitutes   for,    and 

94 


gööertion  of  &tgf)tö  a  foetal  JDutp 

accessories  to,  the  institutions  of  the  state. 
Here  belong  the  secret  courts  of  criminal  jus- 
tice in  the  middle  ages  and  the  feudal  law, 
which  bear  weighty  evidence  to  the  impo- 
tence or  the  partiality  of  the  criminal  courts 
of  the  time  and  to  the  weakness  of  the  state 
power;  in  the  present,  dueling,  which  is  a 
palpable  proof  that  the  penalties  which  the 
state  inflicts  on  attacks  on  one's  honor  are 
not  sufficient  to  satisfy  the  delicate  feeling 
of  honor  of  certain  classes  of  society.  Here 
also  belong  the  revenge  for  bloodshed  of 
the  Corsicans  and  so-called  lynch-law  in 
the  United  States.  All  these  show  very 
plainly  that  the  legal  institutions  of  the 
country  are  not  in  harmony  with  the  feeling 
of  the  people  or  of  a  class.  They  always 
imply  a  reproach  to  the  state,  either  that  it 
makes  them  necessary  or  that  it  endures 
them.  When  the  law  has  prohibited  them, 
without,  however,  being  able  to  abolish  them, 
they  may  become,  for  the  individual,  the 
source  of  a  very  serious  conflict.  The  Corsi- 
can   who   obeys    the   law    rather   than    have 

95 


Wt)t  Struggle  for  Hato 


recourse  to  revenge  for  bloodshed  is  despised 
by  his  own  kinsfolk;  if  he  follows  what  the 
national  feeling  seems  to  demand  of  him,  he 
perishes  by  the  avenging  arm  of  justice.  And 
thus  it  is  with  the  duel.  The  person  who 
declines  it  when  his  honor  dictates  that  he 
should  accept  it,  is  disgraced;  if  he  accepts 
it,  he  is  punished  —  a  situation  as  painful 
to  the  individual  as  to  the  judge.  In  vain 
do  we  look  for  facts  analogous  to  these  in  the 
early  history  of  Rome,  for  the  institutions  of 
the  state  were  then  in  perfect  harmony  with 
the  national  feeling  of  legal  right. 


96 


CHAPTER  V 

IMPORTANCE   OF  THE   STRUGGLE  FOR  LAW 
TO  NATIONAL  LIFE 


HAVE  now  reached  the  end  of  my 
reflections  on  the  struggle  of  the 
individual  for  his  legal  rights.  We 
have  followed  him  through  all  his 
motives,  from  the  lowest  of  mere  calculation 
up  to  the  ideal  one  of  the  assertion  of  his 
personality  and  its  moral  conditions  of  exist- 
ence, until  we  reached  the  realization  of  the 
idea  of  justice  —  that  highest  point,  from 
which  one  false  step  plunges  the  man  whose 
feeling  of  violated  right  has  made  a  criminal 
into  the  abyss  of  lawlessness. 

But  the  interest  of  this  struggle  is  not  con- 
fined, by  any  means,  to  private  life  or  private 
law.  Rather  does  it  extend  far  beyond  them. 
A  nation  is,  after  all,  only  the  sum  of  all  the 
individuals  who  compose  it,  and  the  nation 


97 


3tfje  Struggle  for  Hato 


thinks,  feels,  and  acts  as  the  individuals  that 
make  it  up  think,  feel,  and  act.  If  the  feeling 
of  legal  right  of  the  individuals  of  the  nation 
is  blunted,  cowardly,  apathetic;  if  it  finds  no 
room  for  a  free  and  vigorous  development, 
because  of  the  hindrances  which  unjust  laws 
and  bad  institutions  put  in  its  way;  if  it  meets 
with  persecution  where  it  should  have  met 
with  support  and  encouragement;  if,  in  con- 
sequence of  this,  it  accustoms  itself  to  endure 
injustice  and  to  look  upon  it  as  something 
which  cannot  be  helped,  who  will  believe  that 
such  a  slavish,  apathetic  and  paralyzed  feel- 
ing of  legal  right  can  be  aroused  all  at  once  to 
life  and  to  energetic  reaction,  when  there  is 
question  of  a  violation  of  the  rights,  not  of 
an  individual,  but  of  the  whole  people;  an 
attempt  on  their  political  freedom,  the  breach 
or  overthrow  of  their  constitution,  or  an 
attack  from  a  foreign  enemy?  How  can  the 
person  who  has  not  been  used  to  defending 
even  his  own  rights  feel  the  impulse  volun- 
tarily to  stake  his  life  and  property  for  the 
community?     How  can  the  man  who  thinks 

98 


importance  to  Rational  Htfe 


nothing  of  the  ideal  damage  which  he  suffers 
in  his  person  and  his  honor,  inasmuch  as 
he  abandons  his  rights,  because  he  loves  his 
ease;  who  was  accustomed,  in  legal  matters, 
to  employ  only  the  measure  of  material  inter- 
est, be  expected  to  employ  a  different  measure 
and  to  feel  differently  when  there  is  question 
of  the  right  and  the  honor  of  the  nation? 
Whence  could  that  idealism  of  feeling  sudden- 
ly proceed  which  had  thus  far  never  shown 
itself?  No!  The  battler  for  constitutional 
law  and  the  law  of  nations  is  none  other  than 
the  battler  for  private  law;  the  same  qualities 
which  distinguished  him  struggling  for  his 
rights  as  an  individual  accompany  him  in 
the  battle  for  political  liberty  and  against  the 
external  enemy.  What  is  sowed  in  private 
law  is  reaped  in  public  law  and  the  law  of 
nations.  In  the  valleys  of  private  law,  in 
the  very  humblest  relations  of  life,  must  be 
collected,  drop  by  drop,  so  to  speak,  the 
forces,  the  moral  capital,  which  the  state 
needs  to  operate  on  a  large  scale,  and  to 
attain  its  end.     Private  law,  not  public  law, 

99 


(Efje  Struggle  for  Hafco 


is  the  real  school  of  the  political  education 
of  the  people,  and  if  we  would  know  how  a 
people,  in  case  of  need,  will  defend  their 
political  rights  and  their  place  among  the 
nations,  let  us  examine  how  the  separate 
members  of  the  nation  assert  their  own  right 
in  private  life.  I  have  already  cited  the 
example  of  the  combative  Englishman;  and 
I  can  only  repeat  here  what  I  said  above: 
In  the  shilling  for  which  he  stubbornly  strug- 
gles the  political  development  of  England 
lives.  No  one  will  dare  to  wrest  from  a 
people  who,  in  the  very  smallest  matters, 
bravely  assert  their  rights,  the  highest  of 
their  possessions,  and  it  is,  therefore,  not 
mere  chance  that  the  same  people  of  anti- 
quity who  attained  to  the  greatest  political 
development  within,  and  displayed  the  great- 
est power  externally,  the  Romans,  had  at  the 
same  time  the  most  fully  developed  system 
of  private  law.  Law  is  idealism  —  paradoxi- 
cal as  this  may  seem  —  not  the  idealism  of 
the  fancy,  but  of  character:  that  is,  of  the 
man  who  looks  upon  himself  as  his  own  end, 

ioo 


importance  to  Rational  Hilt 


and  esteems  all  else  lightly  when  he  is  attacked 
in  his  personality.  What  matters  it  to  him 
whence  this  attack  upon  his  rights  proceeds — 
whether  from  an  individual,  from  his  own 
government,  or  from  a  foreign  nation?  It 
is  not  the  person  of  the  aggressor  that  decides 
what  resistance  he  shall  oppose  to  the  attack, 
but  the  energy  of  his  feeling  of  legal  right, 
the  moral  force  with  which  he  is  wont  to 
assert  himself.  Hence  the  principle  is  ever 
true:  the  political  position  of  a  people,  both 
at  home  and  abroad,  is  always  in  keeping 
with  their  moral  force;  the  Celestial  Empire 
with  its  bamboo,  the  rod  for  its  adult  children, 
and  its  hundreds  of  millions  of  inhabitants, 
will  never  attain,  in  the  eyes  of  foreign 
nations,  the  respected  position  of  little  Swit- 
zerland. The  natural  disposition  of  the  Swiss 
in  the  matter  of  art  and  poetry  is  anything 
but  ideal.  It  is  sober  and  practical,  like 
that  of  the  Romans.  But,  in  the  sense  in 
which  I  have  thus  far  used  the  expression 
"ideal,"  in  its  relation  to  law,  it  is  just  as 
applicable  to  the  Swiss  as  to  the  Englishman. 

IOI 


Wbt  Struggle  for  Hato 


This  idealism  of  the  healthy  feeling  of  legal 
right  would  undermine  its  own  foundation  if 
it  confined  itself  to  the  defense  of  its  own  rights 
only,  without  taking  any  part  in  the  main- 
tenance of  law  and  order.  It  knows  not  only 
that  in  defending  its  own  legal  rights  it  de- 
fends the  law,  but  that  in  defending  the  law 
it  defends  its  own  legal  rights.  In  a  com- 
munity in  which  this  feeling,  this  sense  for 
strict  law  prevails,  we  look  about  in  vain 
for  the  saddening  sights  so  common  elsewhere 
—  the  mass  of  the  people,  when  the  authori- 
ties prosecute  the  criminal  or  the  violator 
of  the  laws  or  seek  to  arrest  him,  taking  his 
part,  and  seeing  in  the  state  power  the  natural 
enemy  of  the  people.  Every  one  knows  that 
the  cause  of  the  law  is  his  own  cause.  Only 
the  criminal  here  sympathizes  with  the  crim- 
inal. The  honest  man  does  not.  Rather 
does  he  lend  a  willing  and  helping  hand  to 
the  police  and  to  the  authorities. 

It  will  be  scarcely  necessary  for  me  to 
express  in  words  the  inference  to  be  drawn 
from  what  has  been  said.     It  is  summed  up 

102 


importance  to  Rational  Hiit 


in  the  principle:  For  the  state  which  desires 
to  be  respected  abroad,  and  to  be  firm  and 
unshaken  internally,  there  is  no  more  precious 
good  which  it  has  to  guard  and  foster  than 
the  national  feeling  of  legal  right.  The  foster- 
ing of  it  is  one  of  the  highest  and  most  impor- 
tant duties  of  political  pedagogy.  In  the 
healthy,  vigorous  feeling  of  legal  right  of  the 
individual,  the  state  possesses  the  most  fruit- 
ful source  of  its  own  strength,  the  surest 
guaranty,  from  within  and  from  without,  of 
its  own  existence.  The  feeling  of  legal  right 
is  the  root  of  the  whole  tree.  If  the  root  be 
good  for  nothing,  if  it  withers  in  the  rocks 
and  in  the  sand,  all  the  rest  is  but  an  illusion; 
the  storm  comes  and  plucks  it  up  by  the 
roots.  But  the  trunk  and  the  top  have  the 
advantage  that  they  are  seen,  while  the  roots 
are  hidden  in  the  ground  and  veiled  from  sight. 
The  disastrous  influence  which  unjust  laws 
and  bad  legal  institutions  exercise  on  the 
moral  power  of  the  nation  acts  under  ground, 
in  those  regions  which  so  many  amateur  states- 
men do  not  consider  worthy  of  their  atten- 

103 


Wtz  Struggle  for  Hato 


tion;  they  are  concerned  only  with  the  stately 
top;  of  the  poison  which  rises  to  the  top  from 
the  root  they  have  no  idea  whatever.  But 
despotism  knows  where  it  must  strike  to  fell 
the  tree;  it  leaves  the  top  untouched  at  first, 
but  destroys  the  roots.  Every  despotism 
has  begun  with  attacks  on  private  law,  with 
the  violation  of  the  legal  rights  of  the  indi- 
vidual; when  its  work  is  done  the  tree  falls 
of  itself.  Hence  the  necessity,  above  all,  of 
opposing  it  here,  and  the  Romans  well  knew 
what  they  were  doing  when  they  took  advan- 
tage of  an  attempt  on  female  chastity  and 
honor  to  put  an  end  to  the  kings  and  the 
decemvirate.  To  destroy  the  feeling  of  per- 
sonal liberty  in  the  peasant  by  means  of  taxes 
and  services,  to  put  the  citizen  under  the 
guardianship  of  the  police,  to  make  the  per- 
mission to  go  on  a  journey  dependent  on  the 
granting  of  a  passport,  and  the  thought  of 
the  author  on  the  approval  of  the  censor,  to 
impose  taxes  according  to  one's  good  will 
and  pleasure  —  even  a  Machiavelli  could 
have   given    no   better    recipe    to   extinguish 

104 


importance  to  J2ational  TLitt 


all  manly  feeling  of  personal  liberty  in  a 
people,  and  to  insure  despotism  an  unresisted 
conquest.  That  the  same  door  through  which 
despotism  and  arbitrariness  enter  stands  open 
for  the  foreign  enemy  also,  is  not  considered; 
and  only  when  the  enemy  is  actually  there, 
and  it  is  too  late,  do  the  wise  come  to  recog- 
nize that  the  moral  power  and  the  feeling  of 
legal  right  of  a  people  are  the  most  effectual 
rampart  which  can  be  raised  against  external 
enemies.  It  was  at  the  time  that  the  peasant 
and  citizen  were  the  subjects  of  feudal  and 
absolute  arbitrariness  that  Alsace  and  Lor- 
raine wrere  lost  to  the  German  Empire.  How 
could  those  provinces  have  for  the  empire 
a  feeling  which  they  had  ceased  to  have  for 
themselves? 

But  it  is  our  own  fault  if  we  understand  the 
teachings  of  history  only  after  it  is  too  late; 
it  is  not  its  fault  if  we  do  not  understand  them 
in  time,  for  it  preaches  them,  always,  in  such 
a  manner  that  we  may  understand  them  and 
profit  by  them.  The  power  of  a  people  is 
synonymous  with  the  strength  of  their  feeling 

i°5 


&fje  Struggle  for  Hato 


of  legal  right.  The  cultivation  of  the  national 
feeling  of  legal  right  is  care  for  the  health 
and  strength  of  the  state.  By  this  cultiva- 
tion and  care,  I  do  not,  of  course,  understand 
schooling  and  instruction,  but  the  practical 
carrying  out  of  all  the  principles  of  justice  in 
all  the  relations  of  life.  It  is  not,  however, 
sufficient  to  occupy  ourselves  only  with  the 
external  mechanism  of  the  law;  it  may, 
indeed,  be  so  organized  and  directed  that  the 
most  perfect  order  may  reign,  and  still  that 
the  demand  above  referred  to  may  be  entirely 
ignored.  Personal  bondage,  the  tax  for  pro- 
tection paid  by  the  Jew,  and  so  many  other 
principles  and  institutions  of  times  past, 
which  were  in  the  most  flagrant  contradiction 
with  a  strong,  healthy  feeling  of  legal  right, 
and  wrhich  injured  the  state  itself,  perhaps, 
more  than  the  citizens,  peasants,  Jews,  on 
whom  the  burthen  of  them  fell,  in  the  first 
instance,  were  also  conformable  to  law  and 
order.  The  fixedness,  clearness,  certainty  of 
positive  law,  the  doing  away  with  all  those 
principles  at  which  a  healthy  feeling  of  legal 

1 06 


importance  to  Rational  TLitt 


right  might  take  offense  in  any  sphere  of 
the  law,  not  only  of  private  law,  but  in  the 
police  power,  the  administrative,  financial, 
legislative,  the  independence  of  the  courts, 
the  greatest  possible  perfection  of  legal  pro- 
cedure —  this  is  a  surer  way  to  increase  the 
power  of  the  state  than  the  greatest  possible 
increase  of  the  military  budget.  Every  pro- 
vision which  the  people  feel  to  be  unjust, 
and  every  institution  which  they  detest,  is  an 
injury  to  the  national  feeling  of  legal  right 
and  to  the  national  strength,  a  sin  against 
the  idea  of  law,  the  burthen  of  which  falls 
on  the  state  itself,  and  for  which  it  has  not 
infrequently  to  pay  dearly.  It  may,  under 
certain  circumstances,  cost  it  a  province.  I 
am  not,  indeed,  of  the  opinion  that  the  state 
should  avoid  these  sins  from  reasons  of 
expediency  simply.  Rather  do  I  consider 
it  the  most  sacred  duty  of  the  state  to  realize 
this  idea  for  its  own  sake;  but  this  may  be 
doctrinarian  idealism,  and  I  have  no  word  of 
blame  for  the  practical  politician  and  states- 
man who  refuses  such  a  demand  with  a  shrug 

107 


QZfyt  Struggle  for  Hato 


of  the  shoulders.  And  just  on  this  account 
have  I  exposed  the  practical  side  of  the  ques- 
tion to  view,  the  side  which  he  fully  under- 
stands; for  the  idea  of  law  and  the  interest 
of  the  state  go,  here,  hand  in  hand.  There 
is  no  feeling  of  legal  right,  no  matter  how 
healthy  it  may  be,  which  can,  in  the  long 
run,  resist  the  influence  of  bad  laws;  it  grows 
blunted,  withers  and  decays.  For  the  essence 
of  legal  right  is,  as  I  have  frequently  remarked 
already,  action.  What  the  air  is  to  the  flame, 
freedom  of  action  is  to  the  feeling  of  legal 
right.  Refuse  it  this  freedom,  and  the  feel- 
ing dies. 


1 08 


CHAPTER  VI 

THE  ROMAN  LAW  OF  TO-DAY,  AND  THE 
STRUGGLE  FOR  LAW- 
MIGHT  stop  here,  for  my  subject 
is  exhausted.  The  reader,  how- 
ever, will  allow  me  to  claim  his 
attention  for  another  question  close- 
ly related  to  my  subject,  the  question  how 
far  our  present  law,  or  to  speak  more  accu- 
rately, the  Roman  law  of  to-day  as  it  obtains 
here,  on  which  alone  I  can  venture  to  express 
a  judgment,  comes  up  to  the  requirements 
described  in  the  preceding  pages.  I  do  not 
hesitate  to  say  that  it  does  not,  in  any  way, 
come  up  to  them.  It  is  far  behind  the  right- 
ful claims  of  a  healthy  feeling  of  legal  right, 
and  not  because  it  has  not,  in  many  cases, 
found  the  true  solution,  but  because  its  way 
of  looking  at  things  is  diametrically  opposed 
to  the  idealism  described  above  as  constitut- 
ion 


{Efje  Struggle  tor  Hato 


ing  the  essence  of  the  healthy  feeling  of  legal 
right  —  I  mean  that  idealism  which  sees  in  a 
violation  of  law  an  attack  not  only  on  the 
object,  but  on  the  person  himself.  Our  civil 
law  does  not  give  this  idealism  the  least  sup- 
port. The  measure  with  which  it  measures 
all  violations  of  legal  right,  with  the  exception 
of  an  attack  on  a  man's  honor,  is  that  of 
material  value.  It  is  nothing  but  the  perfect 
expression  of  petty,  sober  materialism. 

But  what  should  the  law  guarantee  to  the 
person  whose  legal  rights  have  been  infringed, 
in  his  property,  but  the  litigated  object  or 
its  value  ?  If  this  be  true,  the  thief,  too,  might 
be  allowed  to  depart,  who  had  restored  the 
object  stolen.  But,  we  are  told,  the  thief 
commits  a  crime  not  only  against  the  person 
whom  he  has  robbed,  but  also  against  the 
laws  of  the  state,  against  order,  against  the 
moral  law.  And  docs  not  the  debtor  who 
denies  the  loan  which  has  been  made  him, 
the  seller  or  the  lessor  who  breaks  his  con- 
tract, the  agent  who  abuses  the  confidence  I 
placed  in  him  to  overreach  me,  do  the  same? 

no 


Cfje  Vornan  Hato  of  {Eooap 


Is  it  any  satisfaction  to  my  wounded  feeling 
of  legal  right  when,  from  all  these  persons, 
I  obtain,  after  a  long  struggle,  only  what 
belonged  to  me  from  the  beginning?  But, 
even  leaving  this  desire  for  satisfaction  out 
of  consideration,  a  desire  which  I  do  not 
hesitate  to  acknowledge  to  be  entirely  justi- 
fiable, what  a  disturbance  of  the  natural 
equilibrium  between  the  parties !  The  danger 
with  which  a  bad  issue  of  the  suit  threatens 
them  consists  for  the  one  in  the  loss  of  his 
property,  and  for  the  other  in  the  restitution  of 
what  he  unjustly  retained.  In  the  opposite 
case,  the  one  has  the  advantage  that  he  loses 
nothing,  and  the  other  that  he  has  added  to  his 
wealth  at  the  expense  of  his  adversary.  Is  not 
this  to  provoke  the  most  shameless  of  lying, 
and  to  put  a  premium  on  unfaithfulness  ?  But 
I  have  thus,  in  fact,  done  no  more  than  char- 
acterize our  law.  I  shall  have  an  opportunity 
later  to  prove  this  opinion;  but  I  believe  that 
it  will  be  easier  to  do  this,  if,  for  the  sake  of 
contrast,  I  refer  to  the  attitude  which  the 
Roman  law  assumed  towards  this  question. 

in 


Sijc  Struggle  for  Hato 


I  distinguish  in  this  respect  three  stages  of 
development.  The  first  is  that,  if  I  may  say 
so,  of  the  boundless  violence  of  the  feeling 
of  legal  right,  not  yet  capable  of  self-control, 
of  the  older  law;  the  second  is  that  of  the 
measured  strength  of  the  feeling  of  legal 
right  in  the  intermediate  law;  the  third  is 
that  of  the  decline  of  the  feeling  of  legal  right 
at  the  close  of  the  Empire,  and  especially  in 
the  Justinian  law. 

I  here  sum  up,  in  a  few  words,  the  result  of 
the  researches  which  I  have  made  and  pub- 
lished in  another  work,  on  the  form  under 
which  this  question  appears  to  us  in  the  first 
stage  of  its  development.  In  this  stage,  such 
was  the  sensitiveness  of  the  feeling  of  legal 
right  that  every  violation  of  or  attack  on 
one's  personal  rights  was  looked  at  from  the 
standpoint  of  subjective  injustice  and  the 
degree  of  guilt  of  the  aggressor  not  taken  into 
consideration;  and  hence  the  complainant 
exacted  satisfaction  for  the  injury  done, 
both  from  the  person  who  was  only  formally 
guilty  and  from  the  person  who  was    really 

112 


Wbt  Vornan  Hato  of  1&o  bap 


so.  The  man  who  denied  a  plain  debt 
(nexum),  or  the  damage  which  he  had  done 
to  the  chattel  of  his  opponent,  paid,  if  de- 
feated, double;  and  so  the  person  who,  in  a 
suit  for  the  ownership  of  a  thing,  had  as 
holder  of  it  taken  its  fruits,  was  condemned 
to  return  double  the  value,  and  had,  besides, 
to  bear  the  loss,  if  defeated,  of  the  sum  which 
he  had  staked  on  the  suit  {sacr amentum). 
The  plaintiff  had  to  suffer  the  same  penalty 
when  he  lost  the  suit,  for  he  had  claimed  the 
property  of  another;  and  if  he  erred  ever  so 
little  in  the  valuation  of  an  amount  to  which 
he  was  justly  entitled,  he  forfeited  the  whole 
amount. 

Of  these  principles  and  provisions  of  the 
older  law  much  has  passed  over  into  the  more 
modern  law,  but  the  new  independent  crea- 
tions of  that  law  breathe  an  entirely  different 
spirit.  It  may  be  described  as  the  employ- 
ment and  application  of  the  measure  of  guilt 
in  all  cases  of  the  violation  of  private  law. 
Objective  and  subjective  injustice  are  strictly 
distinguished.     The  former  entails  simply  the 

113 


QTfje  Struggle  for  Hato 


restitution  of  the  object,  the  second  a  penalty 
in  addition  to  this,  sometimes  a  fine,  sometimes 
disgrace;  and  this  proportionate  infliction  of 
a  penalty  is  one  of  the  soundest  thoughts  of 
the  intermediate  Roman  law.  That  a  deposi- 
tary who  had  become  guilty  of  the  breach  of 
trust  of  denying  the  deposit  or  refusing  to 
restore  it  to  the  depositor,  that  the  agent  or 
guardian  who  had  used  his  position  of  trust 
to  promote  his  own  interests,  or  who  had 
knowingly  neglected  his  duty,  should  escape 
by  merely  restoring  the  thing  or  by  making 
good  the  damage  caused,  was  something  to 
which  the  healthy  feeling  of  legal  right  of 
the  Romans  could  not  reconcile  itself.  It 
demanded,  besides  this,  the  infliction  of  a 
penalty  for  the  wrong  done,  as  a  satisfaction 
of  the  wounded  feeling  of  legal  right  and  as  a 
means  of  deterring  others  from  similar  mis- 
deeds. The  penalties  inflicted  were,  in  the 
first  place,  infamy  —  in  Rome  one  of  the 
severest  imaginable,  for  it  entailed,  besides 
the  social  degradation  which  it  produced, 
the  loss  of  all  political  rights,  political  death. 

114 


Cije  Vornan  Hato  of  Cooap 


It  was  inflicted  in  all  cases  in  which  the 
infringement  of  legal  rights  was  an  aggravated 
breach  of  faith.  Then  there  were  the  pecuni- 
ary penalties,  which  were  much  more  exten- 
sively employed  than  they  are  among  our- 
selves. For  the  person  who,  in  an  unjust 
cause,  instituted  a  suit,  or  allowed  one  to  be 
instituted,  there  was  an  entire  arsenal  of  such 
deterrent  means  in  readiness.  They  began 
with  fractions  (T/io,  Vs>  r/3>  lM  of  the  litigated 
object,  rose  to  multiples  of  its  amount,  under 
certain  circumstances,  where  the  defiance  of 
the  opponent  could  not  be  broken  in  any 
other  way,  ad  infinitum,  that  is,  to  the  amount 
which  the  plaintiff  declared  under  oath  to  be 
satisfactory.  There  were  especially  two  forms 
of  procedure,  the  prohibitory  interdicts  of 
the  praetor  and  the  actiones  arbitrarics,  which 
were  intended  to  compel  the  accused  to 
desist  without  any  further  disadvantageous 
consequences,  or  to  expect  to  be  considered 
a  willful  violator  of  the  law,  and  to  be  treated 
accordingly.  They  compelled  the  accused, 
when  he  persisted  in  his  resistance,  or  in  his 

»5 


Cfje  Struggle  for  Hato 


attack,  not  to  restrict  his  action  to  the  person 
of  the  accuser,  but  to  work  against  the  author- 
ities also;  and  thus  it  was  no  longer  only  the 
legal  rights  of  the  complainant  which  were  in 
question,  but  the  law  itself  in  the  person  of 
its  representatives. 

The  object  of  these  penalties  was  the  same 
as  that  of  the  penalty  in  criminal  law.  It 
was,  on  the  one  hand,  a  purely  practical 
object,  to  guard  the  interests  of  private  life 
against  such  violations  as  did  not  fall  under 
the  head  of  crimes,  and,  on  the  other,  a  moral 
object,  to  afford  satisfaction  to  the  wounded 
feeling  of  legal  right;  not  of  the  person  di- 
rectly concerned  only,  but  of  all  those  persons 
who  have  known  of  the  case,  and  to  reassert 
the  authority  of  the  law.  The  money  was 
not  the  end  had  in  view,  but  only  the  means 
to  the  end.1 

'There  is  a  very  strong  proof  of  what  I  have  just  said  in  the 
actiones  vindictam  spirantes.  They  show  this  ideal  point  of  view 
very  clearly,  and  that  their  object  was  not  a  sum  of  money  or  the 
restitution  of  a  thing,  but  reparation  for  an  attack  on  the  feeling  of 
legal  right,  and  on  the  feeling  of  personality  (magis  vindictce  quam 
pecunia  habet  rationem).  Hence  these  actions  did  not  survive  to  the 
heirs,  they  could  not  be  assigned,  they  could  not  be  begun  by  the 

116 


Cfje  &oman  Hato  of  Cooap 


The  manner  in  which  the  intermediate 
Roman  law  looked  at  this  matter  is,  in  my 
eyes,  something  wonderful.  It  was  equally 
far  removed  from  two  extremes,  from  that 
of  the  old  law,  which  placed  objective  injus- 
tice on  the  same  level  as  subjective  injustice, 
and  from  that  of  our  present  law,  which  taking 
an  opposite  direction  has  lowered  the  latter 
to  the  level  of  the  former.  It  gave  entire 
satisfaction  to  the  legitimate  claims  which 
could  be  raised  by  the  justest  feeling  of  legal 
right,  for  it  was  not  satisfied  with  strictly 
separating  the  two  species  of  injustice,  but  it 
could  discern  and  give  expression  minutely 
and  intelligently  to  the  form,  mode,  gravity, 
and  to  all  the  shades  of  subjective  injustice. 

In  turning  now  to  the  last  stage  of  develop- 
ment of  the  Roman  law,  as  it  has  been  defi- 
nitely fixed,  in  the  Institutes  of  Justinian,  I 
cannot  resist  calling  attention  to  the  impor- 
tance of  the  law  of  inheritance,  both  for  the 

creditors  in  case  of  an  assignment  for  their  benefit,  they  were  barred 
after  a  relatively  short  period  of  time,  and  hence  they  had  no  place 
where  it  was  shown  that  the  injured  person  had  not  felt  the  injus- 
tice done  him  {ad  animum  suum  non  revocaverii.   de  injur,  47,  id). 

117 


£f)e  Struggle  for  Hato 


life  of  the  individual  and  for  that  of  the 
nation.  What  would  the  law  of  this  period 
be,  if  it  had  had  to  create  it  by  its  own  efforts? 
But,  just  as  many  heirs,  unable  to  procure  for 
themselves  the  necessaries  of  life,  live  on  the 
wealth  accumulated  by  the  testator,  an 
exhausted  and  degenerated  people  subsist, 
for  a  long  time,  on  the  intellectual  capital 
of  a  previous  vigorous  age.  I  do  not  mean 
simply  that  it  enjoys  the  labor  of  others 
without  any  trouble  to  itself.  I  would, 
above  all,  call  attention  to  the  fact  that  it 
is  in  the  nature  of  the  works,  creations  and 
institutions  of  the  past  to  preserve,  for  a 
certain  length  of  time,  and  to  revivify,  the 
spirit  which  gave  them  birth.  They  hold  in 
themselves  a  store  of  latent  force  which  is 
changed  into  active  force  by  personal  con- 
tact with  them.  In  this  sense  the  private 
law  of  the  republic  in  which  was  reflected 
the  energetic  and  vigorous  feeling  which  the 
old  Roman  people  had  for  legal  right,  served 
the  empire  for  a  time  as  a  living  source.  In 
the  great  desert  of  the  later  world,  it  was  the 

118 


Cfje  Vornan  Hato  of  {Eobap 


only  oasis  in  which  fresh  water  flowed.  But 
despotism  is  like  the  simoon's  breath,  which 
allows  no  plant  to  grow;  and  private  law  alone 
not  being  able  to  maintain  a  spirit  which  was 
despised  everywhere,  was  obliged  to  succumb, 
although  latest  of  all,  to  the  spirit  of  the  new 
era.  This  spirit  of  the  new  era  presents 
itself  to  us  under  a  very  strange  appearance. 
We  might  expect  to  find  in  it  the  marks  of 
despotism,  severity,  harshness,  want  of  con- 
sideration, and  yet  we  find  the  very  opposite 
—  mildness  and  humanity.  But  this  mild- 
ness itself  is  a  despotic  mildness,  that  is,  it 
robs  one  person  of  what  it  gives  another  —  it 
is  the  mildness  of  arbitrariness  and  caprice, 
not  that  of  humanity  —  it  is  the  penalty  of 
cruelty.  This  is  not  the  place  to  give  all  the 
proofs  on  which  I  might  base  this  assertion. 
It  will  be  sufficient,  it  seems  to  me,  to  call 
attention  to  one  especially  significant  trait 
of  that  character,  one  which  is  rich  in  histori- 
cal material  —  the  moderation  and  consider- 
ation shown  to  the  debtor  at  the  expense  of 
the  creditor.     It  may,  I  think,  be  laid  down 

119 


GTfje  Struggle  for  Hato 


as  a  general  maxim  that  sympathy  with 
the  debtor  is  the  sign  of  a  weak  epoch.  This 
sympathy  styles  itself  humanity.  A  vigor- 
ous age  is  concerned  first  of  all  with  insuring 
the  creditor  his  rights,  even  if  the  debtor  goes 
to  the  wall  in  consequence. 

To  come  now  to  the  Roman  law  of  the 
present  time:  I  almost  regret  that  I  have 
mentioned  it,  for  I  see  myself  compelled  to 
pass  judgment  on  it  here,  without  being  able 
to  defend  it  as  I  would  like.  But  that  judg- 
ment itself  I  do  not  hesitate  to  express. 

To  sum  up  my  thoughts  on  the  subject  in  a 
few  words,  I  would  say  that  I  find  in  the 
aggregate  of  history,  and  in  all  the  applica- 
tion, of  modern  Roman  law,  a  marked  pre- 
ponderance, rendered  necessary  to  a  certain 
extent  by  circumstances,  of  simple  erudition 
over  all  those  factors  which  otherwise  deter- 
mine the  formation  and  development  of  the 
law:  the  national  feeling  of  legal  right,  prac- 
tice, and  legislation.  It  is  foreign  law,  writ- 
ten in  a  foreign  language,  introduced  by  the 
learned  who  alone   can  understand   it  per- 

120 


Cfje  Vornan  Hato  of  *Eo  bap 


fectly,  and  exposed,  from  the  first,  to  the 
different  and  changing  influence  of  two  entirely 
opposite  interests,  frequently  in  conflict  with 
each  other;  the  influence,  I  mean,  of  science, 
purely  and  simply  historical,  and  that  of 
the  practical  application  and  development  of 
the  law.  The  practice,  on  the  other  hand, 
has  not  strength  sufficient  to  dominate  com- 
pletely over  the  spirit  of  the  matter  of  the 
law.  It  is,  therefore,  condemned  to  perma- 
nent dependence  on,  to  a  permanent  ward- 
ship of,  the  theory;  and  hence  it  is  that 
particularism  prevails  in  legislation  and  in 
the  administration  of  justice  over  the  weak 
and  limited  efforts  made  to  reach  central- 
ization. Can  it  be  a  matter  of  surprise  that 
a  gaping  abyss  stood  between  such  law  and 
the  national  feeling  of  legal  right,  that  the 
people  did  not  understand  their  law,  nor  the 
law  the  people?  Institutions  and  principles 
which  in  Rome  were,  considering  the  circum- 
stances and  customs  of  the  time  there,  intel- 
ligible, became  here,  on  account  of  the  com- 
plete disappearance  of  their  conditions  pre- 

121 


Cfje  Struggle  for  Hato 


cedent,  a  real  curse;  and  there  never  was  in 
this  world  a  mode  of  administering  justice 
with  more  power  than  this  to  shake  a  people's 
confidence  in  the  law  and  all  belief  in  its 
existence.  What  can  the  simple  and  honest 
ordinary  man  think  when  the  judge,  before 
whom  he  appears  with  a  document  showing 
that  his  opponent  acknowledges  an  indebted- 
ness to  him  of  a  hundred  dollars,  holds  the 
signer  not  to  be  bound  because  the  document 
is  a  cautio  indiscreta,  or  when  a  document 
which  expressly  mentions  a  loan  as  the  basis 
of  an  indebtedness  is  held  to  have  no  force  as 
evidence  except  after  the  expiration  of  two 
years? 

But  I  do  not  intend  to  enter  into  details; 
there  is  no  telling  where  this  might  lead  me. 
Rather  would  I  confine  myself  to  pointing 
out  two  instances  of  aberration  —  I  cannot 
call  them  by  any  other  name  —  in  our  juris- 
prudence, which  are  of  a  fundamental  nature 
and  which  contain  the  real  germs  of  injustice. 

The  first  consists  in  this,  that  our  modern 
jurisprudence  has  entirely  lost  sight  of  the 

122 


W$t  &oman  Hato  of  Co  bap 


simple  idea  already  brought  out,  that  there 
is  question  in  an  infringement  of  one's  legal 
rights,  not  merely  of  a  pecuniary  value,  but 
of  the  satisfaction  of  the  wounded  feeling  of 
legal  right.  Its  measure  is  the  basest  and 
emptiest  materialism  —  money  and  nothing 
else.  I  recollect  having  heard  of  a  judge 
who,  when  the  amount  of  the  object  in  litiga- 
tion was  small,  in  order  to  be  relieved  of  the 
burthen  of  the  trial,  offered  to  pay  the  plain- 
tiff out  of  his  own  pocket,  and  who  was  greatly 
offended  because  the  offer  was  refused.  That 
the  plaintiff  was  concerned  about  the  vindica- 
tion of  his  legal  rights  and  not  about  the 
money,  this  learned  judge  could  not  get 
through  his  head;  and  we  cannot  blame  him 
for  it.  He  might  very  easily  shift  the  blame 
on  the  science  of  the  law.  The  money  con- 
demnation which,  in  the  hands  of  the  Roman 
magistrate,  was  one  of  the  most  powerful 
means  of  doing  justice  to  the  ideal  feeling 
of  legal  right  which  had  been  wounded,  has 
become,  under  the  influence  of  our  theory  of 
evidence,  one  of  the  sorriest  expedients  which 

123 


(Efje  Struggle  for  Hato 


judicial  authority  has  ever  made  use  of  to 
prevent  injustice.  The  plaintiff  is  required 
to  prove  to  a  farthing  the  money-value  which 
he  has  at  stake  in  the  suit.  What  becomes  of 
the  protection  of  the  law  where  there  is  no 
such  pecuniary  interest?  A  lessor  excludes  a 
lessee  from  a  garden  which  the  latter  had 
contracted  to  enjoy  together  with  the  former. 
How  can  the  lessee  prove  the  money-value 
of  a  sojourn  of  a  few  hours  in  a  garden?  Or 
the  former  lets  the  dwelling  before  the  lessee 
has  taken  actual  possession  of  it  to  another, 
and  the  lessee  is  compelled  to  put  up  with 
the  most  miserable  accommodation  for  six 
months,  until  he  finds  another  dwelling.  An 
inn-keeper  shows  a  guest  to  the  door  to  whom 
he  had  promised  a  room  by  telegraph,  and 
the  latter  may  wander  about  for  hours  in  the 
night,  in  search  of  the  most  wretched  quarters. 
Try  to  estimate  this  in  money,  or  rather,  see 
what  compensation  the  court  will  mete  out 
for  it.  In  France,  thousands  of  francs;  in 
Germany  nothing  at  all;  for  the  German 
judge  will  reply  that  inconvenience,  no  matter 

124 


W$t  Eoman  Halt)  of  Ha  bap 


how  great,  cannot  be  estimated  in  money. 
A  private  teacher  who  has  made  an  engage- 
ment with  a  private  institute,  subsequently 
finds  a  more  agreeable  situation,  and  breaks 
his  contract;  another  cannot  be  had  immedi- 
ately to  take  his  place.  Let  anyone  calculate 
the  money  value  lost  by  the  want  of  instruc- 
tion of  the  pupils  in  French  or  drawing,  for 
weeks  or  months,  or  the  damage  in  money 
sustained  by  the  principal  of  the  institute. 
Suppose  that  a  female  cook  leaves  her  place 
without  cause,  and  that,  in  consequence,  her 
master  is  subjected  to  the  greatest  embarrass- 
ment, because  he  finds  it  impossible  to  fill  it. 
How  can  this  embarrassment  be  estimated  in 
money?  In  all  these  cases,  people  are  in 
Germany  entirely  helpless,  for  the  assistance 
which  the  law  offers  to  one  whose  legal  rights 
have  been  invaded  supposes  proof  which  he 
never  is  able  to  adduce;  an  assistance  which, 
even  where  by  way  of  exception  it  is  possible 
to  adduce  this  proof,  is  not  sufficient  effectu- 
ally to  oppose  injustice  from  the  other  side. 
This  is  nothing  else  but  the  reign  of  injustice. 

125 


Cije  Struggle  for  Hato 


It  is  not  the  inconvenience  to  which  one  is 
thus  subjected  that  is  most  burthensome 
and  wounding  in  all  this ;  it  is  the  bitter  feeling 
that  one's  unquestionable  rights  can  be 
trampled  under  foot,  and  that  there  is  no 
help  for  it. 

We  should  not  hold  the  Roman  law  respon- 
sible for  these  defects;  for  although  it  has 
always  held  to  the  principle  that  final  judg- 
ment should  always  have  a  money  basis,  it 
always  knew  how  to  apply  the  money  con- 
demnation in  such  a  manner  that  it  effectually 
protected  not  only  pecuniary  interests,  but 
all  other  rightful  interests.  The  condemna- 
tion to  pay  a  sum  of  money  was  the  means 
of  pressure  which  the  judge  employed  in  civil 
matters  to  insure  obedience  to  his  orders. 
The  defendant  who  refused  to  do  what  the 
judge  imposed  on  him  to  do,  did  not  get  off 
with  the  mere  money  value  of  the  obligation 
he  owed,  but  the  money  condemnation  here 
performed  the  functions  of  a  penalty,  and  this 
consequence  of  the  suit  assured  the  plaintiff 
a  satisfaction  to  which,  under  some  circum- 

126 


tEfje  Vornan  Xato  of  {Eo=aaj> 


stances,  he  attached  much  more  importance 
than  to  the  money ;  viz.,  the  moral  satisfaction 
for  the  frivolous  violation  of  his  legal  rights. 
Our  present  law  never  affords  this  satisfac- 
tion; it  knows  nothing  of  it;  it  takes  cogni- 
zance only  of  the  money-value  of  the  obliga- 
tion which  has  not  been  met. 

In  keeping  with  this  insensibility  of  our 
present  law  for  the  ideal  interest  affected  by  a 
violation  of  legal  right  is  the  doing  away  with, 
in  modern  practice,  of  the  penalties  inflicted 
by  private  Roman  law.  The  faithless  bailee 
no  longer  incurs  infamy  among  us.  The 
greatest  piece  of  rascality,  if  its  perpetrator 
is  only  skillful  enough  to  evade  the  criminal 
law,  escapes  in  our  day,  entirely  free  and 
unpunished.  On  the  other  hand,  money- 
penalties  {Geldstrafen)  and  the  penalties  of 
frivolous  denial,  figure  in  the  law  books,  but 
they  are  never  applied  in  practice.  But 
what  does  this  mean?  Only  that  with  us 
subjective  injustice  is  reduced  to  the  level  of 
objective  injustice.  Between  the  debtor  who 
shamelessly  denies  the  loan  made  him  and 

127 


U£\)t  Struggle  for  Hato 


the  heir  who  does  the  same  thing  in  good 
faith;  between  the  agent  who  has  deceived 
me  and  the  one  who  has  simply  made  a  mis- 
take, our  present  law  knows  no  difference. 
Everywhere  the  trial  turns  only  on  the  bare 
money  interest.  Our  lawyers  to-day  are  so 
far  from  believing  that  the  balance  of  Justice 
should,  in  private  law  as  well  as  in  criminal 
law,  weigh  the  injustice  which  has  been  done, 
and  not  only  the  pecuniary  interest,  that,  in 
daring  to  speak  about  it,  I  must  expect  to 
hear  it  objected  that  in  this  precisely  lies 
the  difference  between  criminal  law  and  the 
law  pertaining  to  the  rights  of  persons.  Yes, 
this  is  true  of  our  actual  law,  unfortunately 
true,  but  it  is  not  true  of  law  in  itself.  It 
would  be  first  necessary  to  prove  to  me 
that  there  is  one  part  of  the  law  in  which  the 
idea  of  justice  should  not  be  realized  to  its 
full  extent.  But  the  idea  of  justice  is  insep- 
arable from  the  carrying  out  of  the  idea  of 
culpability. 

The  second  instance  of  aberration  of  our 
modern  jurisprudence,  referred  to  above,  con- 

128 


Cfje  Vornan  Hato  of  Eotrap 


sists  in  the  theory  of  evidence  which  it  estab- 
lishes. One  might  think  that  theory  had 
been  invented  only  for  the  purpose  of  frus- 
trating the  law.  If  all  the  debtors  in  the 
world  had  conspired  together  to  deprive 
creditors  of  their  rights,  they  could  have 
devised  no  more  effectual  means  to  reach 
that  end  than  has  our  jurisprudence  by  means 
of  this  theory  of  evidence.  No  mathemati- 
cian can  set  up  a  more  exact  method  of  proof 
than  the  one  which  our  jurisprudence  employs. 
It  reaches  the  acme  of  irrationality  in  the 
actions  for  damages.  The  mischief,  to  em- 
ploy the  language  of  a  Roman  jurist,1  "caused 
here  to  the  law  under  the  appearance  of  law," 
and  the  beneficent  contrast  which  the  intel- 
ligent mode  of  action  of  the  French  tribunals 
offers,  have  been  described  in  so  many  re- 
cent works  that  I  need  not  add  anything  on 
it;  one  thing  alone  I  cannot  refrain  from 
saying:  Woe  to  the  plaintiff,  well  for  the  de- 
fendant! 

1  Paulus  in  1.  91,  p.  3,  de  V.  O.  (45,  1)  "in  quo  genere  plerumque  sub 
autoritate  juris  scientice  perniciose  erratur."  Only  the  jurist  had  here 
another  aberration  in  view. 

129 


&f)e  Struggle  for  Hato 


If  I  were  to  sum  all  that  I  have  thus  far 
said,  I  might  call  this  last  exclamation  the 
watchword  of  our  modern  jurisprudence  and 
practice.  It  has  advanced  far  on  the  road 
on  which  Justinian  entered;  it  is  not  the 
creditor,  but  the  debtor,  who  awakens  its 
sympathy,  and  it  would  rather  sacrifice  the 
rights  of  a  hundred  creditors  than,  by  any 
possibility,  deal  too  severely  with  a  debtor. 

The  person  not  versed  in  the  law  might 
almost  believe  that  it  was  scarcely  possible 
to  add  anything  to  this  partial  lawlessness, 
the  legacy  to  us  of  a  false  theory  of  legists, 
who  busy  themselves  with  our  civil  law  and 
mode  of  procedure;  and  yet,  even  this  theory 
is  surpassed  by  the  aberration  of  former 
criminalists,  which  may  be  characterized  as 
an  attempt  on  the  very  idea  of  law  and  as 
the  most  odious  crime  against  the  feeling  of 
legal  right  committed  by  science.  I  here 
refer  to  the  shameful  paralyzing  of  the  right 
of  self-defense,  that  original  right  of  man, 
which,  as  Cicero  says,  is  a  law  enacted  by 
nature  itself,  and  which  the  Roman  jurists 

130 


W$t  Vornan  Hato  of  ^Totiap 


were  ingenuous  enough  to  believe  could  not 
be  ignored  in  any  body  of  laws  in  the  world. 
("  Vim  vi  repellere  omnes  leges  omniaque  jura 
permittunt")  They  might  have  been  con- 
vinced of  the  contrary  in  the  last  century, 
and  even  in  our  own.  The  learned  gentlemen, 
indeed,  admitted  this  right  in  principle,  but 
feeling  for  the  criminal  the  same  sympathy 
felt  by  the  jurists  of  the  civil  law  and  its  mode 
of  procedure  for  the  debtor,  they  endeavored 
in  practice  to  limit  and  curtail  it,  in  such  a 
manner  that  they  protected  the  guilty  and 
left  the  person  attacked  unprotected.  What 
a  deep  abyss  of  the  degeneration  of  the  feeling 
of  personality,  of  unmanliness,  of  the  decay 
and  bluntness  of  the  sentiment  of  legal  right 
opens  before  us,  when  we  descend  into  the 
literature  of  this  theory!  We  might  almost 
imagine  ourselves  in  the  company  of  a  set 
of  chaste,  emasculated  men.  The  man  whose 
life  or  honor  is  threatened,  we  are  told,  should 
retire  or  take  flight  —  that  is,  yield  the  field 
to  injustice  —  and  these  sages  disagreed  only 
on  one  question:  whether  officers,  nobles  and 

131 


&fje  Struggle  for  Hato 


other  persons  of  position  should  flee  also.  A 
poor  soldier  who,  to  obey  this  order,  had 
retreated  twice,  but  who,  being  pursued  by 
his  adversary,  finally  resisted  and  killed  his 
pursuer,  was  condemned  to  death  as  a  salu- 
tary lesson  to  himself  and  as  a  deterrent  ex- 
ample to  others. 

People  of  very  high  position  and  of  dis- 
tinguished birth,  likewise  officers,  should  be 
permitted  to  make  rightful  resistance  in 
defense  of  their  honor;  but,  adds  another,  in 
limitation  of  this,  in  case  of  mere  verbal 
injury,  they  should  not  go  as  far  as  killing. 
There  were,  on  the  other  hand,  other  persons, 
even  state  officials,  who  could  not  be  allowed 
to  enjoy  this  privilege;  and  the  ministers  of 
civil  justice  were  dismissed  with  the  remark 
that  "as  mere  men  of  the  law,  spite  of  all 
their  claims,  they  had  to  depend  on  the  law 
of  the  land  and  the  rights  it  accorded  to  all 
alike,  and  that  they  could  make  no  further 
pretensions."  The  merchant  class  fared  worst 
of  all.  "Merchants,  even  the  richest,"  we 
read,  "constitute  no  exception.     Their  honor 

132 


tEfje  Vornan  Hato  of  Eooap 


is  their  credit;  they  have  honor  only  so  long 
as  they  have  money;  they  may,  therefore, 
without  any  danger  of  losing  their  honor  or 
reputation,  bear  being  called  opprobrious 
names,  and  when  they  belong  to  the  lower 
class,  put  up  with  a  slap,  if  not  very  painful, 
or  a  rap  over  the  nose."  If  the  unfortunate 
man  was  a  Jew  or  peasant,  he  was,  for  violat- 
ing this  prescription,  to  bear  the  penalty  of 
prohibited  self-defense,  whereas  other  persons 
were  to  be  punished  as  "gently  as  possible." 
But  what  is  especially  edifying  is  the  man- 
ner in  which  it  was  attempted  to  exclude  the 
right  of  self-defense  when  a  question  of  prop- 
erty was  involved.  The  law  of  property, 
some  said,  was  just  like  that  of  honor,  a 
reparable  loss;  the  former  was  repaired  by  the 
reivindicatio,  the  latter  by  the  actio  injuri- 
arum.  But  how  if  the  robber  has  taken  to  his 
heels  and  escaped  to  foreign  parts,  and  no  one 
knows  who  or  where  he  is?  The  owner  has 
still  de  jure  the  reivindicatio,  and  "it  is  only 
the  consequence  of  accidental  circumstances, 
entirely   independent   of   the   nature   of   the 

133 


tEfje  Struggle  for  Hato 


right  of  property,  that,  in  some  cases,  the 
complaint  does  not  always  lead  to  the  pro- 
posed end."  With  this  the  person  may  con- 
sole himself  who  carries  everything  he  owns 
upon  his  person  in  the  form  of  valuable  papers. 
He  still  holds  his  property  and  the  reivindica- 
tio,  and  the  robber  has  nothing  but  actual 
possession!  This  reminds  me  of  the  man 
who,  when  robbed,  consoled  himself  with 
the  reflection  that  the  robber  had  not  the 
directions  for  the  use  of  the  stolen  object. 
Others  admit  that,  when  the  loss  of  a  very 
large  sum  is  involved,  it  is  allowable  to  employ 
force,  only  as  a  last  resort,  but  they  make  it 
the  duty  of  the  person  attacked,  no  matter 
under  how  great  excitement  he  may  be  labor- 
ing, carefully  to  consider  how  much  force  is 
required  to  repel  the  attack.  If  he  needlessly 
cracks  the  skull  of  the  aggressor,  where  any 
one  who  had  previously  had  an  opportunity 
to  subject  the  strength  of  the  skull  to  an  exact 
examination  would  have  been  able  to  render 
him  harmless  by  a  less  powerful  stroke,  he 
is  held  responsible!     On  the  other  hand,  in 

134 


©be  Eoman  Hato  of  ©ooap 


the  case  of  less  valuable  objects,  for  instance, 
a  gold  watch  or  a  purse  with  a  few  guldens,  or 
even  with  a  hundred  guldens,  he  must  not, 
for  the  life  of  him,  do  any  harm  to  his  aggres- 
sor. For  what  is  a  watch  in  comparison  with 
life  and  limb?  The  loss  of  the  former  can 
be  repaired;  the  loss  of  the  latter  is  irrepa- 
rable. This  is  an  indisputable  truth,  but 
that  the  watch  belongs  to  the  person  at- 
tacked and  the  limbs  to  the  robber,  is  forgot- 
ten. Doubtless  they  have  for  him  an  incal- 
culable value,  for  the  person  attacked  they 
have  none  at  all;  and  then  remains  the  ques- 
tion: Who  repairs  the  loss  of  the  watch? 

But  enough  of  this  learned  folly  and  perver- 
sity. How  deeply  humbled  we  should  feel 
at  seeing  that  the  thought,  so  simple,  just, 
and  so  much  in  harmony  with  the  true  feeling 
of  legal  right,  that,  in  every  legal  right,  be 
its  object  only  a  watch,  one's  person  and  all 
his  rights  are  attacked,  had  vanished  from 
the  law  to  such  an  extent  that  the  sacrifice 
of  one's  rights  and  the  cowardly  flight  from 
injustice  could  be  raised  to  the  dignity  of  a 

135 


Cfte  Struggle  for  Hato 


duty.  Can  we  wonder  that  cowardice  and  the 
apathetic  endurance  of  injustice  were  the  char- 
acter of  our  national  history  at  a  time  when 
science  dared  to  enunciate  such  doctrines? 
Let  us  congratulate  ourselves  that  we  live  in 
very  different  times.  Such  theories  are  im- 
possible in  our  days.  They  can  thrive  only 
in  the  swamp  through  which  a  nation,  rotten 
alike  from  a  political  point  of  view  and  from 
the  point  of  view  of  law,  drags  itself  along. 
This  theory  of  cowardice,  of  the  obligation 
of  sacrificing  our  imperiled  rights,  is  the  most 
direct  opposite  of  the  theory  which  I  have 
advocated,  that  the  courageous  battle  for 
one's  legal  rights  is  a  strict  duty.  Not  quite 
so  far,  yet  far  enough  below  the  height  of  this 
healthy  feeling  of  legal  right,  lies  the  level  of 
the  view  of  a  modern  philosopher,  Herbart, 
as  to  the  ultimate  basis  of  the  law.  Herbart 
sees  the  basis  of  all  law  in  an  aesthetic  motive 
—  we  can  call  it  nothing  else;  the  dislike  of 
contention.  This  is  not  the  place  to  show 
the  complete  untenableness  of  this  view, 
and  I  am  happy  to  be  able  to  refer  to  the 

136 


{Efje  Vornan  Hato  of  <Eo  bap 


writings  of  Julius  Glaser  for  a  refutation  of 
it.  But  if  we  were  warranted  to  estimate 
the  law  from  an  aesthetic  point  of  view,  I  do 
not  know  whether,  instead  of  seeing  what  is 
beautiful  in  the  law  in  the  exclusion  of  a 
struggle,  I  would  not  rather  place  it  in  the 
admission  of  a  struggle.  I  have  the  courage 
to  express  an  opinion  in  direct  opposition  to 
Herbart's,  and  frankly  to  confess  myself 
guilty  of  finding  pleasure  in  strife.  I  of  course 
do  not  here  mean  a  mere  war  of  words,  or  a 
contest  about  nothing.  I  mean  that  sublime 
struggle  in  which  the  man  stakes  his  own 
person  and  all  he  has  for  his  own  rights  or 
the  rights  of  his  country.  The  person  who 
blames  the  love  of  struggle  in  this  sense  may 
wipe  out  all  our  literature  and  all  our  art  from 
the  Iliad  of  Homer  and  the  sculpture  of  the 
Greeks  to  our  own  day.  There  is  scarcely 
any  subject  which  has  had  so  much  attrac- 
tion for  the  pen  of  the  poet  and  the  brush  of 
the  painter  as  strife  and  war;  and  we  would 
have  to  go  far  to  find  the  person  whose  aes- 
thetic taste  is  more  displeased  than  pleased 

137 


Cfje  Struggle  for  3Uto 


at  the  contemplation  of  the  higher  display  of 
human  power  which  sculpture  and  poetry 
have  illustrated.  The  highest  problem  of 
art  and  literature  is  man's  defense  of  an  idea, 
be  that  idea  law,  fatherland,  faith,  or  truth. 
But  this  entering  the  lists  for  an  idea  is  always 
a  struggle. 

It  is  not,  however,  aesthetics,  but  ethics, 
which  has  to  tell  us  what  is  in  harmony  with, 
and  what  contradicts,  the  idea  of  law.  But 
ethics,  far  from  rejecting  the  struggle  for 
law,  enjoins  it  as  a  duty.  The  element  of 
strife  and  of  struggle  which  Herbart  would 
eliminate  from  the  idea  of  the  law  is  an  inte- 
gral part  of  it,  and  has  been  from  the  first — 
struggle  is  the  eternal  labor  of  the  law.  The 
sentence:  "In  the  sweat  of  thy  brow  shalt 
thou  eat  bread,"  is  on  a  level  with  this  other: 
"By  struggling  shalt  thou  obtain  thy  rights." 
From  the  moment  that  the  law  gives  up  its 
readiness  to  fight,  it  gives  itself  up;  for  the 
saying  of  the  poet,  that  only  he  deserves  lib- 
erty and  life  who  has  to  conquer  them  for 
himself  every  day,  is  true  of  law  also. 

138 


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